^^  PRINCETON.  N.  J.  ^ 


Library  of  Dr.  A.  A.  Eoclge.      Presented. 


BV    760     .B83    1866  ) 

Buck,    Edward.  ' 

Massachusetts    ecclesiastic^ 

law  I 


<. 


MASSACHUSETTS 


ECCLESIASTICAL  LAW, 


B  Y 


EDWARD    BUCK, 


OF     THE     SUFFOLK     EAR. 


BOSTON: 
aOULD      AND      LINCOLN, 

59     WASHINGTON      STREET. 

NEAT     YORK:      SHELDON     AND      COMPANY. 

CINCINNATI  :    GEO.  S.  BLANCHAKD  AND  CO. 

1866. 


Entered,  according  to  Act  of  Congress,  in  the  year  1865,  by 

GOULD     &    LINCOLN, 

in  the  Cle  k's  Office  of  the  District  Court  for  the  District  of  Massachusetts. 


CamliriTjge  ^rcss. 

I   X      AND      M  K  T  C  A  L  r. 


PREFACE. 


In  this  volume  I  have  attempted  to  collect,  and  arrange 
in  convenient  form  for  reference,  the  Ecclesiastical 
Laws  of  JNIassachusetts,  which  lie  scattered  in  profusion 
among  the  statutes  and  reports  of  the  Commonwealth. 

In  order  to  secure  completeness,  reports  of  legislative 
committees,  town  histories,  church  histories,  reports  of 
councils,  sermons,  periodicals,  and  biographies  have  been 
examined.  Something  has  also  been  done  toward  tracing 
our  present  ecclesiastical  laws  and  usages  to  English 
sources  ;  and,  with  a  view  of  making  the  work  more  gene- 
rally useful  in  all  parts  of  the  Union,  decisions  of  other 
States,  and  denominational  controversies  in  which  Massa- 
chusetts had  no  special  part,  have  been  cited. 

Legal  and  clerical  friends,  of  competent  learning,  have 
aided  me  with  valuable  suggestions.  Our  late  honored 
Chief  Justice  very  kindly  allowed  me  to  read  to  him  a 
large  part  of  the  manuscript.  With  these  precautions,  I 
trust  I  have  secured  reasonable  accuracy  in  the  points 
that  have  risen  during  the  rapid  growth  of  our  numerous 
Congregational  churches ;    especially  in  those    conflicts   in 

(III) 


IV  PREFACE. 

regard  to  doctrine  and  polity  that  marked  the  decline  of 
the  State  connection. 

The  reader  will  see,  at  a  glance,  that  the  churches  of 
Massachusetts  owe  their  extensive  participation  in  the  legal 
discussions  that  have  taken  place  to  a  connection  with  the 
State,  which  was  very  naturally  formed  in  their  behalf, 
during  colonial  times.  He  will  trace,  with  satisfaction,  the 
manner  by  which  painful  decisions  of  courts  have  led  to  a 
complete  separation  between  the  churches  and  the  State; 
placing  the  Congregational  churches  of  the  Commonwealth 
on  the  safe  footing  of  churches  in  other  New  England 
States,  which  have  made  less  figure  in  courts  and  legisla- 
tures. 

I  shall  be  pleased  if  the  details  here  collected  tend  to 
do  honor  to  the  upright  and  learned  judges  of  Mas- 
sachusetts, and  increase  our  reverence  for  the  simple  faith 
and  polity  of  our  fathers, —  encouraging,  meanwhile,  those 
reasonable  hopes,  entertained  by  many  Christian  men,  that 
Congregational   churches   are    to   be   the  churches  of  the 

future. 

E.  B. 
Boston,  Nov.  21, 1865. 


CONTENTS 


CHAPTER    I 

America  dedicated  to  Religious  Uses  —  Care  of  the  Puritans  in  founding  Towns 
Precincts,  Parishes  —  Their  Bounds  —  Setting  off  Parishioners  by  specia 
Acts— Ecclesiastical  Jurisdiction  of  the  General  Court  —  Danvers,  Hadley 
Springfield,  Andover, ...        Page  15 


CHAPTER    II. 

Support  op  the  Gospel  —  Towns  fined  for  neglecting  it  —  Inhabitants  for  not  at- 
tending Worship  —  Taxes  on  Persons,  Lands,  Corporations,  how  collected  — 
Members  liable  for  Parish  Debts  —  Haverhill  —  Who  are  Parish  Members,      24 


CHAPTER   in: 

Tax  Laws  for  Support  of  the  Gospel  —  Modified  to  accommodate   Quakers, 

Episcopalians,  Baptists,   Universalists  —  Bill    of  Rights,    1780  —  Methodists 

and  Statute  1799  —  Religious  Freedom  Act,  1811, 35 


CHAPTER    lY. 

Choice  op  Ministers  under  the  Tax  Laws  —  The  Dedham  Case,  1820  —  Settling  & 
Minister  by  the  Town  —  The  Majority  of  the  Church  seceding,  the  Name  and 
Property  are  retained  by  the  adhering  Minority, 47 


VI  CONTENTS. 

CHAPTER    V. 

The  PEmcEPLES  of  the  Dedham  Case  applied  —  Brookfield  —  Hollis  Street  —  Amend- 
ed BiU  of  Righte,  1834,        60 

CHAPTER    VI. 

Churches  —  Their  Members  —  Excommunication  —  Discipline — Rights  and  Usages 
of  Churches  —  Cambridge  Platform  —  Syi^ods  — Creeds  —  Council  Pamphlets  as 
to  Usages  and  Creeds,  . 66 

CHAPTER    Vn. 

Ministers  —  Early  Laws  and  Usages  —  Their  Dignity,  Permanent  Settlement, 
Special  Contracts  —  Councils  for  Approbating,  Ordaining,  Dismissing  —  Mis- 
conduct and  Heresy  —  Act  and  Testimony  of  The  General  Assembly  of  the 
Presbyterian  Ohurch  —  Control  of  the  Pulpit  —  Ministerial  Lands,  Funds  — 
Interdenominational  Topics  of  Discussion, 85 

CHAPTER  -i^HI. 

Deacons— Their  Rights,  Duties,  Prerogatives  —  Corporate  Powers  — What  Con- 
tracts they  may  make  —  Why  the  Church  was  not  incorporated  specifi- 
cally  114 

CHAPTER    IX. 

Religious  Societies  —  Organization  —  Incorporation  —  Roman  Catholics  —  Federal 
Street  —  Park-Street  Trust' Deed  —  Taxes,  how  levied  —  Officers  of  Religious 
Societies  —  Their  By-laws  —  Their  Relief  —  Their  Extinction,  .        .        .      120 


CHAPTER    X. 

Meeting-Houses  — Owned  by  the  Parish  —  Title,  in  whom  it  vests  —  Repairing, 
removing,  and  rebuilding  —  Town-Housea  —  Trespass  on  Meeting-House  and 
Grounds, 186 


CONTENTS. 


CHAPTER    XI. 

Pews  —  At  Common  Law  —  Ownership  qualified  —  Exempt  from  Attachment  — 
Control  of  Pews  by  Religious  Societies  —  Taxing  Pews  —  Exclusive  Rights  of 
Pew-Owners, 144 

CHAPTER    Xn. 

The  Precincts  op  the  Meeting-House — Town  and  Parish  Conflicts  as  to  Train- 
ing-Fields, Commons,  and  Horse-Sheds  —  Shrewsbury  —  Ludlow — Medford  — 
Reading  —  Pepperell  —  The  Burial-Ground  —  Care  taken  of  it  by  Shrewsbury  — 
By  Andover  —  Burial  Rights, .        .      149 

CHAPTER    XHL 

Charities  —  Jurisdiction  —  Who  are  Benefiwaries  —  Construction  of  Charities  — 
Harvard  Seminary  —  Bills  to  enforce  —  Statute  of  Limitations  —  ReUgious 
Belief  of  Founders  and  Donees  —  Subscription  to  Funds  —  Visitorial  Power  — 
Andover  Seminary  —  Bowdoin  CoUege  —  Control  of  Legislature — Income 
limited  —  Charitable  Incorporations  numerous, 161 

CHAPTER    XIV. 

Marriage  —  Celebrated  by  Justices  of  the  Peace  or  Ordained  Ministers  —  Minis- 
ters classified— PubUshment  — Consent  of  Parents  —  Clerk's  Record  —  Penal- 
ties incurred  —  Age  of  Consent  —  Capacity  —  Color  —  Ceremony  —  Minister 's 
Record, .        .      184 

CHAPTER    XV. 

Penal  Laws  —  Observance  of  the  Lord's  Day,  Preamble,  Decisions  —  Blasphemy, 
Kneeland's  Case,  Rights  of  Discussion  —  Atheists,  their  Exclusion,  Thurs- 
ton's Case, 193 

CHAPTER    XVI. 

Ecclesiastical  CouNoas  —  Ipswich  —  Mr.  Norton  —  Committee  of  Arrangements — 
The  General  Court, 204 


VIII  CONTENTS. 

CHAPTER     XVII 

CODNCiLS  —  Mutual  —  Ex  Parte  —  Notice  —  Thompson  v.  Rehoboth  —  Impartial 
ity  —  Reading  —  The  0£fer  —  The  Protest  —  Accepting  —  Burr  v.  Sandwich  — 
The  Questions  examined  — The  Evidence, 211 

CHAPTER     XVIII. 

CoDN'CiLS  —  The  Result  —  Modes  of  Receiving  —  President  Edwards  —  Results,  when 
binding  —  Stearns  v.  Bedford  —  Hollis  Street  —  Result  accepted  by  one 
Party, 229 


appe:n^dix. 

A.  —  Statute  1786,  Chapter  10, 249 

B.  —  Statute  1799,  Chapter  87, 252 

C  — General  Sts.  1860,  Ch.  30,  31,  32.    On  Parishes  and  Religious  Societies,    255 

D.  —  General  Statutes  1860,  Chapter  28.     On  Burials, 266 

E.  —  Gen.  Sts.  1860,  Ch.  84.     On  Observance  of  the  Lord's  Day.     St.  1865-  On 

the  Better  Observance  of  the  Lord's  Day, 269 

F.  —  General  Statutes  1860,  Chapter  106.     On  Marriage,         .        .        .        .271 

G.  —  Articles  and  Resolutions  of  the  Unitarian  Convention,  April,  1865,  .  275 
H.  —  Declaration  of  Faith  of  the  Congregational  Convention,  June,  1865,  .  277 
I.  —  Creed  and  Confession  of  the  Church  in  Andover  Theological  Seminary,    230 


INDEX, 283 

TABLE  OF   CASES,         .        ,  301 


MASSACHUSETTS 
ECCLESIAS^TCAL    LAW. 


MASSACHUSETTS    ECCLESIASTICAL   LAW. 


CHAPTER   I. 


America  dedicated  to  Religious  Uses  —  Care  of  the  Puritans  in  founding  Towns, 
Precincts,  Parishes  —  Their  Bounds —  Setting  off  Parishioners  by  Special  Acts 
—  Ecclesiastical  Jurisdiction  of  the  General  Court  —  Danvers,  Hadley,  Spring- 
field, Andover. 

§  1.  At  the  discovery  of  our  Continent,  Colum- 
bus consecrated  it  to  religious  uses  with  the  strik- 
ing rites  of  the  Roman  Catholic  Church.  "  In  all 
countries  visited  by  your  highnesses'  ships,"  he 
writes  to  Ferdinand  and  Isabella,  "  I  have  caused 
a  high  cross  to  be  erected  on  every  headland,  and 
have  proclaimed  to  every  nation  that  I  have  dis- 
covered the  lofty  estates  of  your  Highnesses.  I 
also  teU  them  all  I  can  respecting  our  holy  faith, 
and  the  belief  in  the  holy  Mother  Church,  which 
has  its  members  in  all  the  world;  and  I  speak  to 
them  of  the  courtesy  and  nobleness  of  all  Chris- 
tians, and  of  the  faith  they  have  in  the  Holy 
Trinity."  i 

Admirals  of  the  established  Church  of  England 
were  no  less  elaborate  in  their  rites  and  ceremo- 
nies in  the  countries  which  they  discovered  at  the 
far  north.     "  After  a  storm  in  Hudson's  Bay,"  says 

1  Select  Letters  of  Columbus. 

(15) 


16  MASSACHUSETTS    ECCLESIASTICAL   LAW. 

Frobisher,  in  1578,  "  when  each  had  ripped  up 
their  sundry  fortunes  and  perils  past,  they  highly 
praised  God ;  and  altogether,  upon  their  knees,  gave 
due,  humble,  and  hearty  thanks ;  after  this,  they 
listened  to  a  godly  sermon  by  master  Wolfall. 
He,  on  another  occasion,  administered  the  com- 
munion after  a  godly  sermon,  which  celebration 
of  the  divine  mystery  was  the  first  sign,  seal,  and 
confirmation  of  Christ's  name,  death,  and  passion 
ever  known  in  these  quarters."  ^ 

Obeying  impulses  which  stirred  in  the  hearts 
of  all  who  came  to  America,  the  Pilgrims  of 
Plymouth  and  Puritans  of  Massachusetts  Bay 
dedicated  their  land  by  providing  themselves  with 
godly  ministers  and  arranging  for  their  permanent 
support.  Secretary  Washburn  put  ministers  at  the 
very  head  of  a  list  of  persons  and  things  to  be 
sent  out  in  the  company's  ships.  In  1629,  it  is 
resolved  that  the  support  of  ministers,  "  together 
with  convenient  churches  and  other  charges,"  be 
indifferently  borne,  one  half  by  the  company's 
joint  stock  for  seven  years,  the  other  half  by  the 
planters;  and  the  year  after,  an  assessment  of 
sixty  pounds  is  levied  on  the  important  settle- 
ments of  Boston,  Watertown,  Charlestown,  Rox- 
bury,  Medford,  Winnissimmet,  in  proportion  to  their 
means,  for  the  support  of  Mr.  Wilson  and  Mr. 
PhiUips.  2 

§  2.  The  "high  cross  on  the  headland."  The 
occasional    sermon   would    not    answer    the    great 

1  3  Hakluyt,  116.  ^  i  Mass.  Rec. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  17 

ends  of  the  colonists  of  Plymouth  and  Massachu- 
setts Bay  who  came  to  found  a  "plantation  reli- 
gious." They  did  not  trust  their  interests  to  the 
spontaneous  care  of  those  who  were  willing  to  set- 
tle among  them.  A  committee  of  the  General  Court 
looked  after  the  quality  of  the  settlers,  and  the 
quality  of  their  belief,  as  well  as  the  location  of  each 
company  of  settlers.  The  pious  care  of  the  Com- 
monwealth is  well  expressed  by  the  ordinance  of 
1679,  requiring  the  council  or  county  courts  to  ap- 
point" an  able  and  discreet  committee,  at  the  charge 
of  the  people,  intending  to  plant,  to  view  and  con- 
sider the  place  ;  to  direct  in  what  form,  way,  and 
manner,  such  town  should  be  settled ;  having  prin- 
cipal respect  to  nearness  and  conveniency  of  habi- 
tation, security  against  enemies,  more  comfort  for 
Christian  communion,  enjoyment  of  God's  worship, 
and  civility  with  other  good  ends."  ^ 

§  3.  Ecclesiastical  and  civil  boundaries  were 
alike  denoted  by  the  word  town.  Throughout  the 
Old  Colony  and  Massachusetts  records,  parishes  are 
not  mentioned  as  ecclesiastical  divisions,  although 
the  term  was  famihar  at  that  time,  as  England  was 
then  divided  into  nine  thousand  parishes.  The  terms 
parish,  precinct,  and  district  came  into  use  after  the 
colonial  times,  from  the  English  ecclesiastical  law. 

In  the  province  laws  our  familiar  and  conven- 
ient  distinction   between  town  and   parish  was  lit- 

1  5  Mass.  Record,  214  —  Com.  v.  Roxbury,  9  Gray.     The  Colony  or- 
dinance limiting   the  size  of  towns  on  the  seaboard  to  a  distance  of 
eight  miles  inland,  was  in  accordance  with  the  s.mall  size  of  the  early 
Diocese.     14  Church  Review,  605.     For  Virginia  Colonies  do.  14,  9.3 
2  * 


18  MASSACHUSETTS    ECCLESIASTICAL  LAW. 

tie  known.  Town,  precinct,  parish,  and  district 
were  terms  indiscriminately  used  both  for  ecclesi- 
astical and  civil  purposes,  as  any  one  may  see  by 
examining  the  provincial  statutes  from  1692  to 
1753,  cited  below,  which  describe  the  growth  and 
transformation  of  precincts,  parishes,  and  districts 
into  towns.i 

At  the  breaking  out  of  the  Revolution,  this  trans- 
formation into  towns,  with  the  privilege  of  sending 
a  member  to  the  General  Court,  is  frequent.  About 
this  time  the  terms  precinct  and  parish  begin  to  be 
employed  in  a  sense  more  strictly  ecclesiastical.'-^ 
Thus  the  boundaries  of  parishes  are  "  confirmed " 
ecclesiastically  ;  their  inhabitants  are  made  a  "  body 
corporate  ;  "  their  engagements  of  a  "  parochial  na- 
ture "  are  provided  for ;  and,  in  case  of  a  division, 
the  rest  of  the  town  became  "  the  first  parish."  ^ 

§  4.  The  division  of  substantial  towns  into  two 
or  more  parishes  was  by  no  means  a  matter  of 
course  ;  it  must  be  "  legally  and  regularly  "  done,  by 
order  of  the  General  Court.     The  ecclesiastical  metes 

iSt.  1694,  ch.  5;  1702,  ch.  4;  1718,  ch.  6;  1720,  ch.  8,  10;  1722, 
ch.  5  ;  1723,  ch.  3  ;  1730,  ch.  1  ;  1731,  ch.  1 ;  1733,  ch.  1 ;  1743,  ch.  11  ; 
17.53,  ch.  3. 

2  In  St. 1780,  erecting  Natick  District  into  a  town,  the  statute  of  1775 
is  cited,  wliich  was  intended  to  counteract  a  former  provincial  law  that 
refused   representatives  to  districts. 

Tithing-men  in  England  still  perambulate  the  bounds  of  the  parish, 
and  the  records  are  kept  by  the  bishop.  The  bounds  of  some  Loudon 
parishes  are  not  yet  settled. 

3  St.  1786,  ch.  10,  following  St.  1754:  and  partly  St.  1718,  ch.  6. 
In  the  statute  recognizing  the  civil  divisions  as  ecclesiastical,  the  Gen- 
eral Court  seems  to  have  followed  the  Council  of  Constantinople,  a.  d. 
381,  which  was  the  first  to  confirm  them.     1  Church  Review,  336. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  19 

and  bounds  were  as  exact  as  the  civil.  Indeed, 
the  boundaries  of  the  commonwealth  itself,  long 
after  the  Revolution,  were  not  so  well  defined  as 
those  of  parishes,  precincts,  and  districts. 

It  would  be  difficult  to  say  which  was  the  first 
parish  created  by  law  in  Massachusetts.  The  West 
Parish  in  Andover  was  probably  the  very  last 
purely  ecclesiastical  parish  in  the  commonwealth. 
It  was  established  March  3,  1827,  and  its  bounds  are 
carefully  given  thus  :  Beginning  at  a  stake  and 
stones,  thence  northerly  to  a  hop-kiln,  thence  easterly 
to  a  white  oak-tree,  thence  along  the  Shawshine, 
thence  along  the  Merrimack.  All  inhabiting  with- 
in those  limits  were  exempt  from  paying  their  taxes 
to  the  South  Parish  in  Andover.^ 

Time  has  superseded  these  ecclesiastical  boun- 
dary toils  of  our  ancestors,  which  they  derived  from 
England.  We  now  look  upon  them  and  the  mass 
of  legislation  they  required,  as  the  traveller  regards 
the    old  world  masonry  of  fortified  towns.^ 

West  Andover  will'  furnish  an  illustration  of  a 
territorial  parish,  the  lands  lying  contiguous,  the 
earliest  kind  of  parish  known  in  Massachusetts. 

Another  description  of  parish,  introduced  after 
the  Revolution,  included  men  with  "  their  lands 
and  estates  and  polls,"  without  reference  to  conti- 
guity, and  these  were  called  poll  parishes.^ 


1  St.  1826,  ch.  106. 

2  For  acts   since  1830,  as  to  the  boundaries  of  Synods  and  Presby- 
teries, see  Moore's  Digest,  Dexter's  Congregationalism,  288,  note. 

3  Amherst,  Stat.  1783. 


20  MASSACHUSETTS   ECCLESIASTICAL  LAW. 

Alongside  the  ancient  territorial  parish  (or  its 
equivalent,  the  precinct),  a  third  less  regular  associ- 
ation sprang  up,  having  no  reference  to  lands  and 
estates,  called  sometimes  a  poll  parish,  but  more 
commonly  a  religious  society.  We  have  then  the 
various  ecclesiastical  terms  of  parish,  precinct,  dis- 
trict, poll  parish,  and  religious  society  in  common 
use  after  the  revolution.  In  our  own  day,  however, 
the  religious  society  bids  fair  to  supersede  all  the 
older  terms  heretofore  in  use. 

§  5.  From  the  first  settlement  of  Massachusetts, 
the  principle  upon  which  the  General  Court  pro- 
ceeded in  supporting  the  gospel  was  that  of  the 
ecclesiastical  law,  which  had  been  in  force  in  Eng- 
land long  before  the  Reformation ;  to  wit,  that 
every  man  in  the  town,  parish,  precinct,  or  district, 
with  his  lands,  was  to  contribute  in  the  town,  par- 
ish, or  precinct  where  he  lived  unless  specially  ex- 
empt. At  a  later  time,  when  a  parishioner  found  it 
convenient  to  attend  another  meeting  in  the  same 
town  or  an  adjoining  town,  he  apphed  to  the  Gene- 
ral Court,  and  he  was  set  off  with  his  land.  David 
Barnard,  by  a  special  act  in  1804,  is  set  off  from 
the  North  Parish  of  Andover  to  the  South,  "  always 
provided  however  that  said  David  first  paid  the  taxes 
already  due  to  the  North  Parish."  Such  transfers  of 
men  by  special  act  are  frequent ;  at  least  half  a  doz- 
en per  annum,  until  the  law  of  1824,  ch.  106,  made 
an   application  to   the   General  Court  unnecessary.-^ 


1  Tlie  power  of  the  General  Court  to  tninsfcr  to  a  dissenting  society 
an  individual  who  had  no  religious  scruples  against  the  Congregational 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  21 

The  Supreme  Judicial  Court  were  very  nice  in  ap- 
plying these  tax  and  parish  laws.  They  held  that 
the  ward  was  to  be  taxed  wherever  his  guardian 
attended  church,  without  reference  to  the  ward  or 
his  parents;  that  the  exemption  of  David  Barnard 
and  his  land  lasted  only  during  his  lifetime ;  and 
the  occupant  after  him  must  obtain  a  new  special 
act  of  exemption,  if  he  did  not  wish  to  pay  his  tax 
to  the  North  Parish  of  Andover.^ 

In  the  early  times  it  was  not  easy  to  be  "  legally 
set  off,"  or  "  regularly  set  off,"  for  parishes,  precincts, 
or  individuals.  A  strong  case  had  to  be  made  out 
to  the  satisfaction  of  the  Committee  of  the  General 
Court.  Many  were  the  remonstrances  and  counter 
remonstrances  before  Salem  Village,  now  Danvers, 
could  be  set  off  from  Salem,  and  have  preaching  of 
its  own.  West  Hadley  had  a  great  struggle  before 
it  could  be  set  off  from  Hadley  ;  West  Springfield 
from  Springfield.  They  had  to  explain  to  the  Gen- 
eral Court  their  abihty  to  support  a  minister,  to  con- 
vince the  Court  that  it  was  dangerous  to  cross  the 
river  in  an  open  boat  to  go  to  meeting  :  mere  incon- 
venience did  not  weigh  much  in  those  days. 

The  five  huge  manuscript  volumes  in  the  Secre- 
tary of  State's  office  prove  that  there  was  exercised 
a  minute  superintendence,  after  the  manner  of  the 
English  Parliament  and  Courts  Spiritual,  in  answer 
to  petitions  of  towns  and  individuals,  on  all  man- 
was  questioned,  but  overruled  by  Chief  Justice  Parsons  in  Thaxter  v. 
Jones,  4  Mass.  570,  1808. 

1  Kingsbery  y.  Slack,  8  Mass.  154.  Baldwin  v.  Fitchburg,  8  Pick. 
494. 


22  MASSACHUSETTS  ECCLESIASTICAL    LA  W. 

ner  of  ecclesiastical  subjects.  The  petitions  of  towns 
to  be  furnished  with  ministers,  are  not  infrequent.  A 
much  larger  number  ask  aid  in  supporting  ministers  ; 
private  persons  ask  leave  to  attend  their  favorite 
preacher  in  neighboring  towns  ;  and  prisoners  beg 
leave  to  attend  preaching  anywhere.^ 

The  town  of  Andover  will  serve  to  illusti-ate  the 
various  sphitual  solicitudes  that  occupied  legisla- 
tors and  royal  governors  in  those  days.  As  early 
as  1681,  certain  inhabitants  petition  for  aid  in  settling 
a  conti-oversy  about  a  meeting-house  which  was 
much  needed  in  the  south  part  of  the  town  of  An- 
dover. Again,  in  1707,  they  petition  that  the  dif- 
ferences about  the  meeting-house  be  resettled.  In 
1708,  the  South  Parish  is  allowed  to  build  a  meet- 
ing-house, provided  they  lay  out  certain  lands  for 
the  minister's  use,  and  build  him  a  parsonage.  In 
October,  1710,  the  South  parish  humbly  present  to  the 
Hon.  Wm.  Shirley  (his  Majesty's  governor),  that 
they  had  built  a  suitable  parsonage  with  four  chim- 
neys and  four  chambers  ;  but  the  minister,  the  Rev. 
Mr.  Bernard  of  the  North  Parish,  refused  to  make 
up  his  mind  which  parish  he  would  serve,  the  North 
or  the  South  ;  and  what  should  they  do  ?  There- 
upon Mr.  Bernard  is  required  to  declare  his  mind 
before  the  11th  of  December,  otherwise  the  South 
Parish   might  employ  any  minister  they  chose. 

The  Royal  Governor  of  the  Province,  with  his 
Council  and  Aids,  was  quite  a  symbol  of  the  eccle- 


1  Fifty  j^rants  to  aid  fecl)le  diurclics  were  m;ule  between  1693  and 
1711.     None  are  found  after  1711.     1   Con;;.  Quarterly,  57,  163. 


MASSACHUSETTS    ECCLESIASTICAL   LAW.  23 

siastical  as  well  as  civil  dignity  that  resided  in  the 
General  Court  of  those  days,  attending,  in  state, 
councils  of  churches  and  ordinations  of  ministers, 
quite  unlike  a  modern  governor  of  Massachusetts, 
who  is  confined  to  cattle-shows,  musters,  commence- 
ments, and  other  terrestrial  gatherings.^ 

This  mingling  of  the  civil  and  ecclesiastical  in 
our  early  history  needs  no  apology ;  it  implies  no 
usurpation  of  power.  The  Confederate  Commis- 
sioners of  the  New  England  Colony,  from  1643  to 
1667,  maintained  a  careful  supervision  of  the  re- 
ligious condition  of  each  colony.  They  distributed 
Bibles,  they  conducted  missions  to  the  Indians,  on  a 
scale  unknown  before  their  time,  besides  settling 
the  very  difficult  question  of  public  law  relating  to 
war,  boundary,  and  jurisdiction,  on  high  Christian 
principles,  without  precedents  to  guide  them.^ 

1  The  presiding  of  the  Governors  of  Massachusetts  and  Connecticut, 
in  the  year  1865,  over  general  councils,  is  a  recognition  of  the  ancient 
era.  Ordinations,  in  1759,  occasioned  so  much  "  feasting,  jollity,  and 
revelling,"  that  the  Council  addressed  the  clergy  a  circular  on  the  sub- 
ject.    Hist.  Socy. 

2  9  and  10  Plymouth  Records;  2 Palfrey's  New  England,  passim. 


CHAPTER   II. 

The  Support  of  the  Gospel  —  Towns  fined  for  neglecting  it  —  Inhabitants  for  not 
attending  Worship  —  Taxes  on  Persons.  Lands,  Corporations  —  How  Col- 
lected —  Members  liable  for  Parish  Debts  —  Haverhill  —  Who  are  Parish  Mem- 
bers. 

§  1.  In  colonial  times,  when  little  was  known  of 
toleration,  when  every  Protestant  State  in  Europe 
had  its  State  Church,  it  was  natural  for  the  settlers 
of  Massachusetts  Bay,  all  Englishmen,  to  adopt  a 
modification  of  the  English  law  of  Church  and 
State  suited  to  their  circumstances;  to  enact,  as 
they  did  in  1638,  that  "  every  inhabitant  who  should 
not  voluntarily  contribute  to  all  charges,  both  in 
Church  and  Commonwealth,  proportionably,  accord- 
ing to  his  ability,  should  be  compelled  thereto  by  as- 
sessment." ^ 

This  enactment  was  rendered  more  specific  by  later 
statutes.  There  were  few  colonists,  when  the  Revo- 
lution broke  out,  better  versed  in  tax  laws  than  the 
people  of  Massachusetts.  Their  system  of  ecclesias- 
tical taxation  had  the  merit  of  being  definite  and 
impartial,  from  the  first ;  levied  with  all  the  impar- 
tiality, at  least,  of  town  taxes  in  our  day.- 

1  The  English  law  of  church  rates  under  13  Edward  I.,  circum- 
specte  arjitis,  and  under  the  High  Commission  Court  founded  by  St.  1. 
Elizabeth,  were  not  favorable  models  to  work  from.  Vellcy  v.  Gos- 
ling, 1  Ecc.  Cases  479. 

'^  As  to  early  sn])port  of  ministers,  see  1  Cong.  Quar.  158.  For  an 
(24) 


MASSACHUSETTS  ECCLESIASTICAL  LAW.  25 

As  early  as  1637,  we  find  the  General  Court  au- 
thorizing the  Town  of  Newbury  to  raise  sixty  pounds 
by  tax  on  all  inhabitants,  "  by  an  equal  and  propor- 
tionable rate,  having  respect  to  the  lands  and  person- 
al estate  of  those  absent  and  those  dwelling  there." 
The  object  was  to  pay  for  building  of  houses  for 
their  ministers  ;  and  the  reason  it  was  levied  is  ex- 
pressed by  the  statute,  as  well  as  it  ever  has  been 
since,  "  because  such  as  are  of  the  church  there  are 
not  able  to  bear  the  whole  charge,  and  the  rest  of  the 
inhabitants  do  or  may  enjoy  equal  benefit  with 
them,  yet  they  do  refuse,  against  all  right  and  jus- 
tice, to  contribute  with  them." 

The  suggestion  came  from  Massachusetts,  which 
induced  the  Confederate  Commissioners  of  the  Unit- 
ed Colonies  at  Hartford,  at  their  second  meeting  in 
1644,  to  adopt  the  following  recommendations  to  all 
the  General  Courts  of  the  Colonies  of  New  England : 
"  That  those  who  are  taught  in  the  word  in  the  sev- 
eral plantations  be  called  together,  and  every  man 
voluntarily  set  down  what  he  is  willing  to  allow  to 
that  end  and  use ;  and  if  any  man  refuse  to  pay  a 
meet  proportion  that  he  then  be  rated  by  author- 
ity in  some  just  and  equal  way.  And  if,  after  this, 
any  man  withhold  or  delay  the  payment,  the  civil 
power  be  exercised  as  in  other  just  debts."  ^ 

The  Massachusetts  laws  of  1652  required  "  all 
towns   to  be  supplied   with  a   Minister,  a  Meeting 

examination  of  the  tax  laws  of  Massachusetts,  see  1st  vol.  Am.    Statis- 
tical Assn.     The  attempts  of  Randolph  and  Andros  to  subvert  the 
Massachusetts  tax  system  are  described,  3  Palfrey. 
1  9  Plymouth  Records,  20,  also  Trumbull's  Col.  Rec. 
3 


26  MASSACHUSETTS  ECCLESIASTICAL  LAW. 

House,  and  a  Parsonage  "  —  and  all  inhabitants  to 
be  taxed  for  their  support.^  This  was  not  aU.  In 
case  of  defect  in  any  congregation  or  town,  in  provid- 
ing "  for  the  settled  and  encouraging  maintenance  of 
ministers,"  the  County  Court  ordered  what  mainten- 
ance should  be  allowed,  and  issued  warrants  to  the 
selectmen  to  assess  the  inhabitants,  which  assess- 
ment the  constables  were  to  collect  like  any  other 
town  taxes.2 

§  2.  Any  town  feeling  itself  burdened  by  the 
County  Court's  assessment  could  appeal  to  the 
Great  and  General  Court.  The  General  Court,  as 
early  as  1654,  held  it  to  be  their  "  great  duty  to 
provide  that  all  places  and  people  within  their 
gates  should  be  supplied  with  an  able  and  faithful 
minister  of  God's  holy  word."  Presidents  of  County 
Courts  and  Grand  Juries  were  to  present  all  abuses 
and  neglects,  and  attend  to  the  orders  of  the  General 
Court  concerning  the  maintenance  of  the  ministry, 
and  the  purging  of  their  towns  from  such  ministry  and 
public  preachers  as  shall  be  found  vicious  in  their 
lives,  and  perniciously  heterodox  in  their  doctrine. 

So  strictly  were  these  matters  attended  to,  that  we 
have,  in  1800,  the  exact  penalties  which  towns  should 
pay  for  neglecting  to  supply  good  preaching  to  the 
people.  If  the  neglect  lasted  for  three  months  out 
of  six,  the  penalty  was  from  thirty  to  sixty  dollars ; 


1  For  sonic  peculiarities  of  Newbury,  see  Contr.  to  Eccl.     History'  of 
Essex  Co.,  18G5,  340. 

2  0akes  y.  Hill,  10  Pick.   333.     How   fiir   English   precedents  were 
followed  maybe  seen  Veley  v.  Gosling,  1  Eccl.  Cases,  457,  1842. 


MASSACHUSETTS  ECCLESIASTICAL   LAW.  2Y 

if  repeated,  the  penalty  was  from  sixty  to  one  hun- 
dred dollars.^ 

§3.  The  General  Court  did  not  consider  their 
laws  merely  good  advice  on  religious  subjects. 
Not  only  were  the  meeting-house  and  minister  and 
parsonage  to  be  provided  for  by  the  people  by  a  tax 
on  each  inhabitant  according  to  his  personal  and 
real  property ;  but  the  inhabitants  w^ere  required  to 
attend  the  preaching  provided  for  them  under  a 
penalty  of  five  shillings  for  absence  on  Lord's  day, 
on  Fast  or  Thanksgiving.  At  common  law  it  was 
an  offence  to  be  absent  from  public  worship ;  and 
by  statutes  1  Elizabeth  ch.  2,  absentees  without 
excuse  were  liable  to  the  censures  of  the  church  and 
a  fine  of  twelve  pence.  Our  statute  of  1791 
allowing  able  bodied  men,  absent  three  months 
fi'om  meeting,  to  escape  by  paying  ten  shillings, 
was  a  serious  modification  of  the  statute  before  in 
force.  The  fine  of  ten  shillings  might  be  imposed 
on  any  delinquent  in  Massachusetts  until  1835, 
when  the  law  was  repealed. 

John  White,  in  his  "  New  England's  Lamenta- 
tion," rebuked  severely  those  "  whose  stubborn 
will  will  not  submit  to  the  just  and  regular  dis- 
cipline of  the  church  to  which  they  belong,  or  be- 
cause they  cannot  have  their  own  will  as  to  the 
place  of  their  worship." 

§  4.  Following  still  the  precedents  of  the  eccle- 
siastical law  of  England,  all  landholders,  resident 
or   non-resident.    Christian   or   not    Christian,  were 

A  Commonwealth  v.  Waterborough,  5  Mass.  257.     Inclictments  of 
tov;ns  before  the  statute  were  not  uncommon,  especially  in  Essex  Co. 
Appendix  B. 


28  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

taxed,  though  they  never  saw  the  minister,  or  en- 
tered the  meeting-house.^  All  corporations  holding 
lands  within  the  parish  were  also  taxed  for  the  sup- 
port of  public  worship  until  1831.  We  have  the 
Goodell  Manufacturing  Company  engaged  in  manu- 
fiic  uring  wooUen  goods,  taxed  as  members  of  the 
First  Congregational  Society  in  Millbury ;  ^  and 
Amesbmy  Nail- Factory,  taxed  for  the  support  of  the 
gospel  in  the  East  Parish  of  Amesbury.  The  court 
listens  to  no  arguments  of  counsel,  founded  on  the 
fact,  that  the  chief  design  of  public  worship  was  to 
save  souls  ;  and  my  Lord  Coke  had  long  ago  laid  it 
down,  that  corporations  had  no  souls  to  be  saved ; 
the  court  rather  gave  heed  to  the  logic  of  the  East 
Parish  of  Amesbury,  that,  —  so  far  as  the  communi- 
ty is  concerned,  —  public  religious  and  moral  instruc- 
tion is  intended  for  the  prevention  of  crimes,  not  the 
salvation  of  souls.^  This  portable  doctrine  of  the 
courts  (the  only  one  that  they  can  administer)  prob- 
ably qualified  the  preaching  in  many  towns  of  Mas- 
sachusetts at  that  time."* 

§  5.  Various  statutes  and  decisions  of  courts  were 
required  to  adjust  the  rights  and  liabilities  of  mem- 
bers of  parishes  and  religious  societies. 

Under  the  statute  of  1817,  ch.  77,  no  person,  not 
a  member  of  a  parish,  could  vote  on  matters  relating 

I  After  1811,  the  non-resident's  land-tax  went  to  support  the  minister 
of  his  denomination,  if  there  was  one  in  the  town.  Turner  v.  Bui'- 
liii.Uton,  16  Mass.  208.  The  liability  of  non-residents  in  Maine  was 
qualitied  by  St.  1821.    Dall  v.  Kimball,  6  Maine,  123. 

■-(ioodell  Mff.  Co.  V.  Trask,  11  Fickering,515. 

^  Amesbury  Nail  Fac.  v.  Weed,  17  Mass.  54. 

*  Christian  Spectator,  5  ;  207. 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  29 

exclusively  to  parishes.  But  parish  taxes  for  the 
support  of  public  worship  legally  assessed  on  men, 
according  to  their  property  and  lands,  could  be  col- 
lected by  the  same  legal  process  of  attachment  and 
arrest  of  the  body,  as  taxes  for  town  or  county  pur- 
poses. We  have  Nathaniel  P.  Fisher,  of  Walpole, 
arrested  in  1832,  for  refusing  to  pay  his  tax  of  two 
dollars,  thirty-eight  cents,  levied  on  the  parishioners, 
at  tow^n-meeting,  for  the  support  of  the  gospel,  in  the 
first  society  at  Walpole.^ 

If  a  parish  were  dehnquent  in  paying  its  debts, 
the  members  of  the  parish  were  liable  individu- 
ally; a  liability  which  a  creditor  could  enforce 
with  the  whole  rigor  of  the  law,  as  effectually  as 
any  personal  claim.  We  have  a  decision  illus- 
trating the  point  in  Essex  County.  The  sheriff 
of  Essex,  having  an  execution  against  the  North 
Parish  in  Haverhill,  for  three  hundred  and  fifty  dol- 
lars, found  no  property  belonging  to  the  North  Parish. 
The  meeting-house  was  old ;  the  ministerial  funds  and 
parsonage  land  could  not  be  levied  on  ;  thereupon  the 
sheriff  seized  three  shares  in  the  Merrimack  Bank,  be- 
longing to  one  of  the  parishioners,  sold  them,  and 
satisfied  the  parish  debt ;  and  the  court  held,  that 
members  of  a  parish  were  liable  for  the  debts  of  the 
parish,  by  a  long  course  of  decisions,  too  ancient  to 
be  unsettled.^ 

§  6.    Such   being   the   liability   of  a   parishioner, 

1  Fisher  v.  Whitman,  13  Pick.  350. 

2  Chase  v.  Merrimack  Bk.  19  Pick.  567.  The  Parish  was  partly  in 
New  Hampshire.  The  same  doctrine  was  applied  in  Maine.  Fernald 
V.  Lewis,  6  Maine,  264. 

3* 


30  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

it  became  a  serious  question  how  and  when  a 
man  became  a  parishioner;  and  here  the  ecclesias- 
tical law  had  its  surprises.  Lawyers  and  laymen, 
drawing  analogies  from  Fisher  v.  Whitman,  imag- 
ined that  they  could  not  become  members  of  a  par- 
ish unless  they  had  filed  a  certificate  to  that  effect 
with  the  town  clerk  or  the  clerk  of  the  parish.  The 
party  whose  shares  were  taken  at  Haverhill,  claimed 
that  he  was  no  parishioner,  because  he  had  not  filed 
with  the  town  clerk  the  certificate  pursuant  to  the 
laws.^  But  Judge  Wilde  held  the  unhappy  man  to 
be  a  member,  nevertheless.  He  had  been  admitted  a 
member  of  the  parish  on  the  application  of  a  friend, 
in  1831  ;  he  had  also  allowed  his  name  to  be  used 
as  one  of  the  trustees  of  the  ministerial  fund,  and 
he  had  attended  parish  meetings.  It  is  true,  that  if 
he  had  filed  with  the  town  clerk  a  certificate  in  per- 
son, according  to  the  laws  of  1811  and  1823,  it 
would  have  been  more  certain  that  he  was  a  mem- 
ber of  the  parish  ;  but  the  Court  deemed  him  a  mem- 
ber with  sufficient  certainty,  without  such  certificate. 
"  There  are  other  ways  of  becoming  a  member  of  a 
parish,  and  Liable  for  all  its  debts,"  said  the  Court, 
"  beside  filing  a  certificate  with  the  town  clerk."  ^ 

This  unfortunate  member  of  the  North  Parish  in 
HaverhiU  had  not  yet  illustrated  aU  the  points  and 
beauties  of  Parish  Law.     The  party  who  recovered 

1  St.  1811,  ch.  6;  1823,  ch.  106. 

2  In  Connecticut  also,  tlic  certificate  indicated  the  parishioner's  prefer 
ence.  The  Laws  of  1817  allowed  Baptists  to  file  one  with  the  town 
clerk  rather  than  the  parisli  clerk,  (8  Spectator,  502,)  in  imitation  of 
the  Massachusetts  act  of  1811. 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  31 

the  former  judgment  (in  July,  1835),  recovered  a 
second  against  the  North  Parish  in  Haverhill,  and 
finding  more  shares  of  the  same  parishioner,  levied 
on  them,  in  the  afternoon  of  the  4th  of  April,  1836. 
On  the  same  4th  of  April,  early  in  the  morning,  how- 
ever (between  six  and  seven  o'clock),  the  parishioner 
heard  that  something  was  astir,  and  took  the  precau- 
tion to  give  notice  in  writing  to  the  clerk  of  the 
North  Parish  in  Haverhill,  that  he  no  longer  consid- 
ered himself  a  member  of  that  parish  ;  and  the  Court 
decided  that  such  a  notice  was  sufficient  to  save  his 
bank  shares ;  notwithstanding  the  remonstrances 
of  Mr.  Choate. 

Such  a  race  of  diligence  can  hardly  be  run  again 
in  Massachusetts  as  the  one  that  came  off  on  the 
4th  of  April,  1836,  between  the  parishioner  and  the 
sheriff;  for  on  the  30th  of  April,  the  Revised  Stat- 
utes went  into  operation,  which  established  the  law 
that  "  no  one  can  be  made  a  member  of  a  religious 
society  without  his  consent  in  writing."  ^  As  to  the 
liability,  in  our  day,  under  any  circumstances,  for 
parish  debts,  the  Supreme  Judicial  Court,  in  1850 
(without  directly  deciding  the  question),  intimated 
very  strongly  that  the  general  liability  for  all  debts 
of  the  parish  had  been  taken  away  since  the  Revised 
Statutes  went  into  operation.^ 

§  7.  To  illustrate  a  little  further  the  obscurity  left 
in  the  ecclesiastical  law  in  regard  to  membership, 
after  the  acts  of  1811  and  1823  had  been  passed,  al- 

1  Rev.  Sts.  ch.  20,  sec.  4.  Gea.  St.  ch.  30,  §  6,  7,  8.  Appendix  C. 
Sudbmy  v.  Steams,  21  Pick.  148. 

2  Richardson  v.  Butterfield,  6  Cush.  191. 


32  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

lowing  a  certificate  of  membership  to  be  filed  with 
the  town  clerk  or  parish  clerk,  fixing  the  place  where 
the  party  was  willing  to  be  taxed,  we  will  cite  a 
case.  The  Rev.  IVIr.  Truair  was  sued,  in  1832,  for 
marrying  parties  who  did  not  belong  to  his  parish ; 
exposing  himself,  under  a  law  now  repealed,  to  a 
penalty  of  fifty  dollars.  The  Court  held  that  a 
bridegroom,  for  certain  purposes,  or  any  man,  might 
well  be  a  member  of  t^o  parishes  at  the  same  time, 
and  exempted  Mr.  Truair  from  the  penalty.^ 

The  comprehensively  troublesome  traits  retained 
by  the  law  are  developed  in  the  case  of  Captain 
Oakes.  Captain  Oakes,  on  the  23d  of  June,  1828, 
obtained  a  certificate  from  the  clerk  of  the  "  Con- 
gregational religious  society  for  the  support  of  Or- 
thodox preaching  in  Maiden,"  that  he  was  a  mem- 
ber thereof.  On  the  28th  of  July  following,  the 
captain  obtained  from  the  same  society  a  certificate 
that  he  ceased  to  be  a  member ;  and  presented  this 
last  certificate  to  the  First  Parish  of  Maiden  (the 
oldest  religious  society  in  the  town),  and  asked  to  be 
admitted  as  a  member  of  the  parish,  and  vote  in 
parish  meetings.  The  clerk  of  the  First  Parish  re- 
fused his  vote,  and  was  sued  by  the  captain  "  for  the 
wrong  and  injury."  The  Court,  following  English 
precedents,  held,  that  all  the  inhabitants  of  the 
Commonwealth  belonged  to  some  religious  society, 
and  were  to  be  taxed,  somewhere,  for  the  support  of 
the  gospel;   that  the  oldest  society  claimed    every 

1  Lcavitt  V.  Truair,  13  Pick.  HI.  Sumner  v.  1st  Parish,  Dorches- 
ter, 4  Pick.  361.      Gage  v.  Currier,  4  Pick.  403. 


MASSACHUSETTS  ECCLESIASTICAL   LAW.  33 

one,  and  must  have  every  one  that  did  not  show,  by- 
certificate  or  otherwise,  that  he  belonged  elsewhere. 
That  as  to  saying  they  would  not  receive  a  man  as 
a  parish  member,  they  could  not  do  it.  Ex  necessi- 
tate rei,  Captain  Oakes  became  a  member  of  the 
First  Parish  in  Maiden,  on  leaving  the  Orthodox  or 
any  other  society  in  Maiden,  and  was  fully  entitled 
to  vote  at  a  parish  meeting,  on  presenting  a  proper 
certificate,  whether  the  parish  wanted  his  company 
or  not.^ 

Who  are  parish  members  ?  what  are  parish  rates 
and  poor  rates  ?  are  great  topics  still  in  English  ec- 
clesiastical law.  But,  since  the  case  of  Capt.  Oakes, 
such  changes  have  been  made  in  our  law,  that 
membership,  in  the  outset,  cannot  be  forced  upon  a 
religious  society  ;  there  must  be  some  assent  by  the 
society  or  its  agents  to  the  admission  of  new  mem- 
bers.2  Without  further  statement  or  illustration,  we 
may  say  that  the  modifications  of  the  ancient  and 
rigorous  law  of  membership  are  comprehended  within 
these  easy  limits  in  our  day ;  to  wit,  whoever  of  full 
age  gives  his  assent  in  writing,  and  is  accepted  by 
the  religious  society  as  a  member,  becomes  liable 
not  for  all  the  debts  of  the  society,  but  only  for  his 

1  Oakes  v.  Hill,  10  Pick.  333.  To  be  entirely  accurate  it  should  be 
stated  that  an  informality  in  the  certificate  of  Captain  Oakes,  ex- 
empted the  parish  clerk  from  damages,  Oakes  v.  Hill,  14  Pick.  442  ; 
but  in  Keith  v.  Howard,  24  Pick.  292,  the  clerk  was  held  liable. 

'^  Sudbury  v.  Stearns,  21  Pick.  148;  Gen.  St.  ch.  30,  §  6. 

Further  changes  as  to  the  admission  of  members  to  religious  societies 
are  proposed,  House  Doc.  No.  165,  for  1860,  also  1864 ;  but  not  adopted. 
In  Maine,  since  1821,  the  assent  of  the  parish  has  been  required. 
Lord  V.  Chamberlain,  22  Maine,  67. 


34  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

proportion  of  such  annual  tax  as  may  have  been 
properly  assessed  during  the  time  of  his  member- 
ship.^ 

1  Ware  v.  Sherburne,  8  Cush.  267.     St.  1817,  ch.  184.     Parker  y. 
May,  5  Cush.  350. 


CHAPTER    III. 

Tax  Laws  for  the  support  of  the  Gospel  modified  to  accommodate  Quakers,  Epis- 
copalians, Baptists,  Universalists  —  Bill  of  Eights,  1780  —  Methodists  and 
St.  1799  —  Religious  Freedom,  Act.  1811. 

§  1.  It  was  by  degrees  that  the  inhabitants  of 
Massachusetts,  who  preferred  other  denominations, 
obtained  leave  to  pass  by  certificate,  from  under  the 
care  and  supervision  of  the  Congregational  churches 
established  by  the  early  laws  of  the  Colony. 

In  1646,  The  Great  and  General  Court,  aiming 
at  a  certain  uniformity  in  doctrine,  while  they  dis- 
claim the  ''  lordship  of  human  power  over  the  faith 
and  consciences  of  men,"  ^  enact,  that  certain  persons 
denying  a  variety  of  doctrines,  among  them  the  bap- 
tism of  infants,  shall  be  banished,  "  if  they  continue 
obstinate  after  due  means  used  for  their  conviction." 

However  harsh  banishment  may  seem  to  us,  it 
did  not  interrupt  the  intercourse  of  Roger  Wil- 
liams with  his  esteemed  friends  of  the  Bay.  It  con- 
tinued to  be  a  penalty  in  most  of  the  colonies  after 
the  Revolution. 

Towards  Quakers,  the  height  of  rigorous  dealing 
was  reached  in  October,  1658,  when  the  death  pen- 
alty was  threatened  for  the  first  time.  On  the  rec- 
ommendation of  the  Federal  Commissioners  of  the 


1  Ancient  Charters,  120. 

(35) 


36  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

United  Colonies  to  the  General  Courts  of  all  the  col- 
onies, Massachusetts  had  enacted  this  severe  law  by 
a  majority  of  one  vote.  During  the  two  years  that 
it  was  in  force,  occurred  the  executions  of  Stevenson, 
Robinson,  and  Mary  Dyer,  on  Boston  Common.^ 

About  one  hundred  years  after  these  sad  events, 
our  ancestors,  instructed  by  the  bitter  English  acts 
of  Uniformity ;  instructed  by  their  own  contests 
with  Antinomians,  Baptists,  and  witches,  began  to 
show  the  fair  fruits  of  their  varied  discipline  in 
the  tolerant  laws  which  permitted  the  persons 
commonly  called  "  Anabaptists  and  Quakers "  to 
be  '•'''permanently  exempt  from  tax  to  support  the 
ministry  and  repair  the  Meeting  House ;  provided, 
however,  they  bring  certificates  from  three  members 
of  their  meeting,  that  they  are  conscientious  in  their 
scruples,  and  do  frequently  and  usually  attend  their 
meeting  for  the  worship  of  God  on  the  Lord's  day."  ^ 
As  for  Papists^  they  had  nothing  to  expect  in  those 
early  days ;  the  charter  of  William  and  Mary  in 
1691,  which  confirmed  all  the  preceding  royal  char- 
ters, and  united  the  Plymouth  to  the  Massachusetts 
Colony,  making   Nova    Scotia,  Maine,  and  Massa- 

1  Mass.  Records,  10  :  212.  Palfrey's  N.  England,  2  :  447-- 485.  It 
would  seem  that  the  harsh  moods  of  our  ancestors,  in  the  case  of  the 
Quakers  and  witches,  hardly  lasted  two  years.  We  might  look  in  vain 
for  a  swifter  return  to  common  sense,  after  a  national  excitement.  As 
to  Witchcraft,  see  Examiner,  11  :  240:  do.  50:  457.  Bib.  Repository, 
1842,  131. 

2  In  Massachusetts,  as  early  as  1728,  they  were  exempt  for  ten  years ; 
in  Connecticut  in  1729.  In  1692,  Quakers  were  allowed  to  affirm,  in- 
stead of  swearing  fidelity  to  the  Crown.  In  1743,  they  were  allowed 
to  affirm  in  all  judicial  matters. 


MASSACHUSETTS    ECCLESIASTICAL   LAW.  37 

chusetts  one  province,  excepted  the  papists  by- 
name from  the  liberty  of  conscience  allowed  in  the 
worship  of  God  to  all  Christians.^ 

In  behalf  of  Episcopalians,  the  tax  laws  were 
relaxed  as  early  as  1735.  Town  treasm-ers  were 
ordered  to  pay  over  to  the  Episcopal  minister 
such  taxes  as  were  collected  from  his  parishioners ; 
provided  they  brought  certificates  that  they  were 
members,  and  usually  and  frequently  attended  the 
public  worship  of  God  with  them  on  the  Lord's  day.^ 

§  2.  It  was  a  good  battle  which  the  dissenters 
(so  the  Quakers,  Baptists,  Methodists,  Presbjrteri- 
ans.  Episcopalians,  and  Universalists  were  called), — 
it  was  a  good  battle  that  they  fought  for  religious 
liberty  in  Massachusetts.  The  Congregationalists 
have  had  the  benefit  of  the  concessions,  which  they 
insisted  upon  so  steadily  for  many  years. 

1  By  act  of  1 700,  Jesuits  and  Romish  priests  were  required  to  de- 
part the  Colony,  under  a  penalty  of  imprisonment  for  life,  if  they  re- 
turned.   2  Palfrey,  471,  as  to  banishment. 

The  merging  of  New  Haven  Colony  into  Connecticut  in  1663,  and 
of  Plymouth  Colony  into  Massachusetts  in  1691,  are  both  proofs  of 
the  flexibility  and  good  temper  of  the  weaker  States.  The  Confeder- 
ate Commissioners  of  the  United  Colonies,  by  their  solemn  discus- 
sions of  the  public  law  relating  thereto,  did  what  they  could  to  soothe 
the  last  days  of  the  New  Haven  Colony.  2  Hazard's  State  Papers,  415. 
The  Plymouth  Union  with  Massachusetts  was  regarded  more  in  the 
light  of  matrimony  than  merger. 

2  Ancient  charters,  538.  Connecticut  appears  to  have  preceded 
Massachusetts  some  sixteen  years  in  exempting  Episcopalians.  The 
early  trials  of  that  denomination  in  Connecticut  are  enumerated  4 
Church  Review,  433,  549—9  do.  73. 

Presbyterians,  in  1746,   applied   for  a  general  law  of  exemption; 
but  they  obtained  only  the  local  act  1752  for  individuals  in  Newbury. 
Essex  North,  1865,  267. 
i 


38  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

The  most  persevering  resistance  to  the  tax 
laws  was  made  by  the  Baptists,  who  were  taxed 
until  1728,  except  in  Boston  and  a  few  other  towns, 
for  the  support  of  Congregational  ministers;  after 
repeated  applications  to  the  General  Court,  they 
obtained  the  limited  relief  of  the  act  of  1757.^ 

The  Warren  Association,  through  the  agency  of 
the  Rev.  Isaac  Backus  of  Middleboro',  was  very  dil- 
igent in  seeldng  this  relief.  When  the  congress  of 
delegates  met  in  Philadelphia  in  1774,  the  hardships 
of  the  denomination  were  laid  before  them. 
Throughout  the  Revolution,  the  Baptists  took  up 
the  burden  of  Roger  Williams,  who  had  proclaim- 
ed, in  his  day,  freedom  of  conscience,  and  separa- 
tion  of  church  and  state,  to  a  reluctant  generation.^ 

§  3.  But  all  relief  from  territorial  parish  taxes  must 
not  be  attributed  to  the  efforts  of  dissenters.  In 
Boston,  it  had  not  been  allowed  to  tax  the  inhabi- 
tants generally,  as  in  the  country  towns,  for  the 
support  of  the  ministry.  An  assessment  was  laid 
upon  owners  of  pews,  according  to  a  valuation  ;   a 

1  The  Statutes  prior  to  1757,  granting  relief  for  the  period  of  five, 
seven,  and  ten  years,  and  annually,  to  dissenters,  were  apparently  im- 
itations of  English  statutes  for  a  like  purpose.  2  May  Constl.  His-' 
tory. 

2  That  Helwys,  the  Colleague  of  Robinson  in  Holland,  was  a  Bap- 
tist, and  held  correct  views  as  to  church  and  state,  sec  16  Christian 
Review,  268  ;  25  do.  130.  As  to  hardships  of  early  Massachusetts  laws, 
14  do.  94,  197,  344. 

^  The  efforts  of  Mr.  Backus  and  the  hardsliips  of  the  early  laws  are 
quite  fully  described  by  Professor  Hovey,  in  his  "  Life  and  Times  of 
Isaac  Backus."  Mills  Historical  Discourse,  Salem,  1854.  The  Bap- 
tists and  their  Principles,  Norwich,  1857.  New  Englandcr,  Aug.  1860, 
595,  for  Connecticut.     In  Virginia,  25  Chr.  Rev.  33. 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  39 

privilege  extended  in  1754  to  all  religious  societies  of 
the  Commonwealth  who  chose  to  adopt  it.  This 
law,  no  doubt,  withdrew  several  churches  and  min- 
isters from  conflict  with  reluctant  parishioners.  It 
was  adopted  in  cities,  after  being  confirmed  by  the 
statutes  of  1786.1 

The  dissenters  of  Massachusetts  were  bent  on  pro- 
curing a  further  separation  of  the  churches  from  the 
state  tie.  They  urged  the  Convention  of  1780,  which 
formed  a  Constitution  for  the  Commonwealth,  to 
do  away  all  features  of  the  ecclesiastical  law  that 
might  remind  them  of  the  English  Acts  of  Uniform- 
ity, leaving  religion  to  support  itself  by  its  own 
inherent,  heavenly  merits.  They  were  not  a  lit- 
tle encouraged  by  the  bill  of  rights ;  for  it  attempt- 
ed to  place  all  denominations  on  an  equality ; 
though  it  retained  in  vigor  the  incompatible  policy 
that  annexed  religion  to  the  soil,  compelling  men 
who  lived  round  the  meeting-house  to  give  the 
Commonwealth  some  excuse  for  not  attending  the 
public  worship  provided  by  law.  Soon  after  1780, 
we  find  the  dissenters  trying  their  rights  in  the 
courts,  and  obtaining  interpretations  of  the  Bill  of 
Rights.*'^ 

§  4.  Among  the  first  to  assert  their  rights,  were 
the  Universalists ;  and  this  was  the  occasion :  Rev. 


1  Gen.  St.  Ch.  30  ^  39,  40.  Mussey  v.  Bulfinch  St.  Ch.  1  Cush.  160. 
Attv.  Gen.  v.  Federal  St.  3.  Gray  1.  St,  1817,  ch.  89. 

^  The  Virginia  Constitutional  Convention  in  1776,  at  Mr.  Madison's 
suggestion,  had  adopted,  in  lieu  of  "  toleration,"  the  following  clause : 
"  all  men  are  equally  entitled  to  the  free  exercise  of  religion  according 
to  the  dictates  of  Conscience."    25  Ch.  Review,  33. 


40  MASSACHUSETTS  ECCLESIASTICAL   LAW. 

John  Murray,  the  father  of  Universalism  in  this 
country,  after  preaching  with  great  success  in  Phila- 
delphia, New  York  and  Newport,  was  appointed 
ciiaplain  to  the  forces  from  Rhode  Island,  by  Wash- 
ington ;  —  a  service  which  he  performed  in  a  manner 
entirely  satisfactory.  After  the  war,  he  retired  to 
Gloucester,  in  Essex  Co.,  and  there  preached  for 
some  time. 

Under  the  statutes  passed  after  the  Bill  of  Rights 
of  1780,  individuals  might  pay  their  taxes  for  the 
maintenance  of  any  "  public  Protestant  teacher  of 
piety,  religion,  and  morality,"  of  their  own  sect, 
provided  there  was  one  in  the  town,  on  whose  in- 
structions they  attended ;  otherwise  the  tax  was 
paid  to  the  established  Congregational  preacher  of 
the  parish. 

For  the  recovery  of  taxes,  paid  by  his  parishioners 
into  the  town-treasury  of  Gloucester,  Mr.  Murray 
brought  a  suit,  which  was  repeatedly  on  trial  from 
1783  to  1786.  It  was  once  argued  by  Rufus  King 
with  great  eloquence,  and  again  by  Governor  Sul- 
livan, who  was  opposed  by  Parsons.  At  length,  Mr. 
Murray  gained  his  cause  from  the  jury,  notwith- 
standing the  adverse  charge  of  the  bench,  and  the 
learned  arguments  of  Parsons,  tending  to  show  that 
one  who  denied  the  eternal  punishment  of  the 
wicked  could  not  be  the  public  teacher  of  "  piety, 
religion,  and  morality,"  required  by  the  Bill  of  Rights.^ 

iLifc  of  Sullivan,  by  T.  C.  Araory,  vol.  1,  182.  "Universalism 
Nipped  in  the  Bud,"  by  Ilev.  John  Cleveland,  1776.  Appeal  of  Inde- 
pendent Congrej^ational  Church  at  Gloucester,  1785,  and  Reply  at 
Salem  Athenaeum. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  41 

The  decision  which  was  obtained  by  the  Bap- 
tists in  March,  1782,  in  Bristol  County  Court, 
pronouncing  "  the  certificates  unconstitutional '' 
under  the  Bill  of  Rights,  seems  to  have  been  local 
in  its  influence.^ 

The  law  of  1799,  ch.  87,  allowing  the  town 
ti'easurers  to  omit  to  tax  those  who  belonged  to,  and 
usually  attended  other  churches,  or  allowed  the  min- 
isters of  "  other  churches  "  to  recover,  by  petition  or 
suit  of  the  town-treasurers,  the  sums  paid  into  their 
hands  for  the  support  of  the  gospel,  was  a  conces- 
sion in  the  right  direction.  The  first  party  we  find 
seeking  an  interpretation  of  this  act  from  the  court 
is  a  Methodist  clergyman,  (the  Methodists  made 
their  appearance  in  the  Commonwealth  about  1790) 
who  obtained  a  peculiar  consti'uction  of  the  law, 
hinted  at  in  the  suit  of  Murray  against  Gloucester, 
—  a  construction  well  adapted  to  support  the  Con- 
gregationalists,  but  not  bringing  much  comfort  to 
the  Methodists,  Baptists,  or  Universalists.  The 
court  decided,  in  1804,  that  an  itinerant  Meth- 
odist minister,  unless  "  ordained  and  settled  " 
over  a  society,  could  not  recover  under  the  law  of 
1799.  They  held  that,  as  the  plaintiiF  preached 
along  the  country  from  Pittsfield  to  Springfield,  if 
he  were  allowed  to  recover  of  the  town  treasurer 
the  moneys  paid  by  Methodist  hearers,  "  it  would 
have  the  most  direct  tendency  to  subvert  all  the 
regular  religious  societies  in  the  Commonwealth." 
The  judges  grounded  themselves  on  the  ^\^m  policy^ 


^Life  and  Times  of  Isaac  Backus,  245. 

4* 


42  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

of  the  Commonwealth,  expressed  in  the  Bill  of 
Rights  of  1780,  which  made  it  the  duty  of  the 
Legislature  "  to  authorize  and  require  the  towns 
parishes,  precincts,  and  religious  societies,  to  make 
suitable  provision  for  the  support  and  maintenance 
of  public  Protestant  teachers  of  piety,  religion,  and 
morality,  in  all  cases  where  such  provision  shall 
not  be  made  "  voluntarily."  ^ 

§  5.  Between  this  decision  in  1 804,  and  the  amend- 
ment of  the  Bill  of  Rights  in  1834,  statutes  were 
passed,  qualifying  decisions  which  courts  felt  them- 
selves obliged  to  make  in  their  application  of  this 
incompatible  policy  to  exigencies  thrust  upon  them 
by  the  rapid  progress  of  the  age.  The  current  of 
judicial  decisions  and  of  remedial  statutes  flowed 
along  thus  :  A  few  years  after  the  Springfield  case, 
the  dissenters  were  alarmed  by  a  decision  of  the 
Supreme  Court,  denying  that  ministers  of  unincor- 
porated societies  could  claim  anything  of  the  town 
treasurer  who  had  received  the  taxes  of  their  pa- 
rishioners ;  for  they  were  not  the  "  public  "  teachers 
prescribed  by  the  Bill  of  Rights,  but  mere  "  private 
teachers  of  piety,  religion,  and  morality." 

This  decision,  first  given  in  the  case  of  a  Uni- 
versafist  minister  in   Falmouth,  Maine,  in  1810,  by 


^  Washburn  v.  Springfield,  1  Mass.  32.    Appendix  B. 

Under  St.  1799,  ch.  87,  it  was  held  :  1st,  The  dissenting  member  of 
a  parish  must  give  notice  where  he  wished  his  tax  paid.  Montague  v. 
Dedham,  4  Mass.  269.  2d,  The  dissenting  minister  could  not  recover 
taxes  unless  he  applied  for  them  in  one  year,  nor  could  he  if  he 
preached  to  two  adjoining  parishes.  Kcndell  r.  Kingston,  .5  Mass. 
524.  1809. 


MASSACHUSETTS  ECCLESIASTICAL  LAW.  43 

Chief  Justice  Parsons,  was  repeated  in  Brookfield 
and  Byfield,  in  the  case  of  the  Baptists.^ 

Few  churches  of  any  denomination,  along  the 
sea-board,  had  been  incorporated ;  it  had  been  "  six 
times  solemnly  decided"  by  the  Courts  of  Massa- 
chusetts, says  Mr.  Dane,  in  1803,  that  acts  of  incor- 
poration were  not  needed.  We  may  imagine,  there- 
fore, the  haste  with  which  dissenters  applied  to  the 
Legislature  in  1811,  for  an  enabling  statute  ;  and 
to  make  all  things  doubly  sure,  they  set  themselves 
vigorously  to  work  obtaining  acts  of  incorporation. 
In  five  years,  there  were  passed  some  seventy  spe- 
cial acts ;  only  one  of  them  for  a  Congregational 
society. 

The  Statute  1811,  ch.  6,  was  at  length  passed  to 
cure  an  obvious  grievance,  to  give  to  voluntary  re- 
ligious societies  some  at  least  of  the  attributes  of 
corporations,  that  they  might  thereby  have  a  stand- 
ing in  Court.2  Paying  to  town  treasurers  taxes 
which  belonged  to  dissenting  ministers  was  held  a 
minor  grievance  not  to  be  relieved  by  statute,  though 
it  required  in  one  instance  fourteen  suits  at  law  be- 
fore a  town  treasurer  yielded  the  taxes,  and  in  an- 
other an  expense  of  one  hundred  dollars  and  four 
years'  time  to  get  four  dollars  out  of  his  hands  for 
the  use  of  a  Baptist  minister. 

Whatever  the  omissions  of  the  act  of  1811,  it 
was  justly  called  the  "  religious  freedom  act."     Un- 

1  Barnes  v.  Falmouth,  6  Mass.  401  ;  Lovell  v.  Byfield,  7  Mass.  230 ; 
Turner  v.  Brookfield,  7  Mass.  60. 

'^  Fisher  v.  Whitman,  13  Pick.  356  ;  Turner  v.  Burlington,  16  Mass. 
208  ;  Biblical  Repository,  1835,  207,  353. 


44  MASSACHUSJiTTS    ECCLESIASTICAL    LAW. 

der  it,  any  one  might  leave  an  old  established  Con- 
gregational society  for  an  Episcopal,  Methodist, 
Baptist,  or  Universalis t  society  in  the  same  town, 
whether  he  had  scruples  or  not.  His  tax  often 
passed  through  the  hands  of  a  reluctant  town  treas- 
urer ;  but  it  reached,  sooner  or  later,  his  own  minis- 
ter, however  ordained,  settled,  or  itinerant;  whether 
his  religious  society  was  incorporated  or  not.  Still 
he  was  obliged  to  bring  to  the  town  treasurer  or 
clerk  a  certificate  that  he  really  did  belong  to  the 
new  society ;  recognizing  thereby  the  allegiance 
that  he  owed  to  the  Commonwealth  and  the  Con- 
gregational church  in  matters  of  religion. 

The  form  of  the  certificate  is  simplified  thus. 

1.  By  St.  1799,  ch.  87,  it  was  to  be  signed  by  the 
minister  and  a  corrimittee  of  two. 

2.  By  St.  1811,  ch.  6,  the  committee  alone  signed 
it. 

3.  By  St.  1823,  ch.  106,  the  clerk  of  the  society 
alone  signs  it.  After  1811,  the  certificate  might  be 
filed  by  the  parishioner,  or  any  person  in  his  behalf, 
with  the  town  clerk.  Fisher  v.  "Whitman,  13  Pick. 
350. 

4.  To  the  Shakers  and  Quakers  we  are  indebted 
for  the  only  specimen  that  we  have  in  the  legislation 
of  our  day  of  the  ancient  certificate  of  belief  and 
worship.  By  the  General  statute  of  1860,  ch.  13, 
§  10,  if  a  Quaker  or  Shaker  wishes  to  be  exempt 
from  enrolment  among  the  mifitia,  he  must,  on  or 
before  the  first  Tuesday  in  May,  annually  present  to 
the    assessors   of  the  town  a  certificate,  signed  by 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  45 

two  or  more  of  the  elders  or  overseers,  and  coun- 
tersigned by  the  clerk  of  the  religious  society  with 
which  he  meets  for  public  worship,  stating  that  he 
"  frequently  and  usually  attends  religious  worship 
with  said  society,  and  we  believe  he  is  conscien- 
tiously scrupulous  of  bearing  arms."  This  memen- 
to comes  down  to  us  from  St.  1809,  ch.  108,  without 
amendment.^ 

§  6.  After  1811,  the  Commonwealth  paid  little 
attention  to  the  quality  of  the  preaching  to  which 
her  inhabitants  listened.  If  the  parish  taxes  were 
paid,  and  her  inhabitants  supported  somewhere, 
what  they  chose  to  call  the  gospel,  the  Common- 
wealth was  content.  Even  Shakers  have  been  re- 
garded as  a  religious  society,  whose  ordinances, 
doctrines,  and  preaching'  might  be  paid  for  and 
propagated  under  the  statute  of  1811.'^ 

Public  opinion  was  by  no  means  unanimous  in 
favor  of  this  statute,  if  we  may  judge  by  the  votes 
of  the  Legislature.  The  Courts  too  were  not  long 
in  disclosing,  that  in  their  opinion  the  statute  made 
a  serious  inroad  upon  the  long  settled  policy  of  the 
Commonwealth.  The  Chief  Justice  gave  a  reluc- 
tant assent  to  its  constitutionality  in  1817,  saying, 
with  considerable  despondency,  that  it  might  become 
injurious  to  "  public  morals  and  religion,  and  tend  to 
destroy  the  decency  and  regularity  of  public  wor- 
ship." In  those  days,  the  Chief  Justice,  somewhat 
at  the  head  of  the  church  as  well  as  the  law,  makes 


1  As  to  Quakers,  see  House  Doc.  1863,  137. 

2  L|wieuce  v.  Fletcher,  8  Met.  153  ;  Earle  v.  Wood,  8  Cush.  430. 


46  MASSACHUSETTS   ECCLESIASTICAL   LAW. 

no  attempt  to  conceal  his  discomfort,  while  pro- 
nouncing the  statute  of  1811  constitutional  in  favor 
of  an  "unincorporated  Baptist  Society,  which  had  no 
settled  minister,  but  engaged  one  to  preach  to  them 
once  a  month,  from  a  neighboring  town."  ^ 

Thus  far  our  narrative  indicates  a  conflict  going 
on,  with  intervals  of  repose,  in  regard  to  the  State 
policy,  tending  towards  uniformity,  which  required 
public  worship  to  be  supported  by  taxation.  The 
severity  of  the  conflict  was  aggravated  rather  than 
allayed  by  judicial  decisions,  however  carefully 
made.  But  special  legislation  has  adjusted  so  many 
parts  of  the  new  growth  and  the  old  policy,  that 
we  are  ready  to  anticipate  a  happy  issue  to  the  en- 
tire conflict.2 

1  Adams  v.  Howe,  14  Mass.  344.  For  solicitude  on  the  repeal  of 
parish  laws  of  Connecticut,  see  Memoir  of  Dr.  Lyman  Beecher. 

In  February,  the  bill  was  rejected  by  the  House,  81  to  126.  On 
the  11th  of  June  following,  it  passed  in  the  House  by  204  to  161  :  in 
the  Senate  19  to  16  ;  by  yeas  and  nays.  In  the  meantime  the  bill  had 
been  amended,  and  Governor  Gerry  had  sent  a  special  message. 

By  a  singular  coincidence,  we  find  Lord  Sydmouth,  in  May  1811, 
attempting  to  check  the  growth  of  Englisli  dissenters,  and  his  efforts 
resulting  in  53  Geo.  III.,  Ch.  155,  which  swept  away  the  Five  Mile 
and  Conventicle  Act. 

2  It  hardly  needs  to  be  said  that  the  stringent  parish  laws  of  Massa- 
chusetts were  promoting  dissent  and  weakening  Congregationalists. 
Instances  are  given  in  Essex  County  of  Congregationalists  forming 
Presbyterian,  Baptist,  and  Methodist  societies,  merely  to  avoid  the  tax 
laws.     See  Essex  North,  238  ;   Examiner,  13  :  349. 

The  position  of  the  church  and  state  questions  in  England  in  1863 
is  stated  2  May,  429. 

The  union  of  church  and  state  in  Virginia,  which  continued  till 
the  Bill  of  Rights  in  1799,  is  described  in  the  rrinceton  Kepository,  1848, 
186,  and  23  Christian  Review.  As  early  as  1776,  modifications  were 
made  in  favor  of  dissenters  from  Episcopacy. 


CHAPTER    lY. 

The  choice  of  a  Minister  under  the  tax  laws  —  The  Dedham  case  —  Settling  a  Minis- 
ter hy  the  town  —  The  majority  of  the  Church  seceding,  the  name  and  prop- 
erty are  retained  by  the  adhering  minority. 

§  1.  In  the  year  1820,  a  very  able  convention 
was  assembled  in  Boston  to  revise  the  Constitution 
of  Massachusetts.  It  was  a  cherished  object  of  the 
dissenters,  aided  by  many  excellent  men  of  the  Con- 
gregational denomination,  to  modify  the  Bill  of 
Rights,  so  as  at  least  to  include  the  enabling  act  of 
1811 ;  leaving  little  supervision  of  religion  to  towns, 
and  less  still  to  town  treasurers.  After  great  debate, 
an  amendment  was  prepared  to  that  effect ;  but  the 
people  promptly  rejected  the  amendment  by  more 
than  8,000  majority.  In  the  same  spirit  they  refused 
by  more  than  12,000  majority,  to  allow  ministers  of 
all  denominations  to  be  overseers  of  Harvard  College. 

There  was  yet  a  strong  attachment  to  the  eccle- 
siastical superintendence  of  the  Commonwealth. 
To  the  tax  system,  no  general  complaint  was  made 
among  the  Congregationalists,  who  had  383  churches, 
two  thirds  of  the  churches  of  the  State.  They  be- 
lieved that  a  good  deal  of  religion  as  weU  as  essen- 
tial dignity  would  be  taken  away  by  any  amendment 
of  the  BiU  of  Rights  of  1780. 

John  Adams,  in  reply  to  the  Baptists,  before  the 
Revolution,  had  said,  "  they  might  as  well  turn  the 

(47) 


48  MASSACHUSETTS   ECCLESIASTICAL   LAW. 

heavenly  bodies  out  of  their  annual  and  diurnal 
courses,  as  the  people  of  Massachusetts  at  the  present 
day  from  their  meeting  house  and  Sunday  laws ; " 
and  the  Massachusetts  people  were  still  of  the  same 
mind.i  In  the  convention  of  1820,  Mr.  Hoar,  Mr. 
Saltonstall,  and  Judge  Wilde  pressed  these  conserva- 
tive views ;  while  Mr.  Webster,  Chief  Justice  Parker, 
and  Judge  Story  favored  all  reasonable  amendments. 
Judge  Hubbard,  representing  the  Orthodox  view,  did 
not  object  to  the  Bill  of  Rights  of  1780  as  it  stood ; 
especially  he  wished  the  Commonwealth  to  retain 
the  power  of  compelling  citizens  to  go  to  meeting ; 
for,  said  he,  though  we  may  not  need  the  power  in 
1820,  thirty  years  hence  a  generation  may  rise  up 
that  will  need  to  be  compelled  by  the  Common- 
wealth.2 

§  2.  Under  the  Bill  of  Rights  of  1780,  Congrega- 
tionalists  had  slumbered,  as  under  their  own  pecu- 
liar vine ;  bearing  unto  them  taxes  and  other  good 
and  religious  fruits ;  they  deemed  it  was  intended 
for  the  especial  refreshment  of  Christians  of  the  es- 
tablished order.  Little  did  they  dream,  in  those 
halcyon  days  of  Commonwealth  favor,  that  a  freez- 
ing blast  was  soon  to  sweep  over  them,  blowing 
out  of  the  judicial  quarter  of  the  heavens,  heretofore 
so  bland  and  genial  to  the  churches  proper  of  the 
Commonwealth.  Before  the  year  1820  was  ended, 
it  came  the  turn  of  the  Orthodox  Congregationalists 
to  be   surprised  at   the  mysteries  of  the  law  eccle- 


1  Life  and  Times  of  Backus,  350. 
'^  Debates,  352. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  49 

siastical,  where  they  least  expected  it,  in  the  mat- 
ter of  settling  a  minister. 

If  there  was  anything  settled  in  the  ecclesiastical 
polity  of  Massachusetts,  it  was  the  mode  of  set- 
tling the  minister.  Early  in  the  colonial  history,  the 
church,  without  asking  the  concurrence  of  the  parish, 
elected  the  minister.  This  was  the  usage  until  1641, 
when  a  law  was  passed,  that  "  every  church  hath  free 
liberty  of  election  and  ordination  of  all  her  officers." 
The  Cambridge  Platform  of  1648  sanctioned  the 
election  by  the  church  alone  ;  in  1668,  the  same  law 
was  re-enacted.  In  1692,  for  the  first  time,  towns 
appear,  by  law,  to  have  anything  to  do  with  the  elec- 
tion of  a  minister ;  thus  the  law  remained  until  1780, 
when  the  Constitution  was  formed,  and  the  Bill  of 
Rights  ran  as  follows :  "  Provided,  notwithstanding, 
that  the  several  towns,  parishes,  precincts,  and  other 
bodies  politic,  or  religious  societies,  shall  at  aU  times 
have  the  exclusive  right  of  electing  their  public 
teachers,  and  of  contracting  with  them  for  their  sup- 
port and  maintenance." 

The  practice  had  been,  for  the  church  to  vote 
for  the  minister,  and  the  parish  afterwards  to  sanc- 
tion their  vote ;  and  the  minister  thus  elected  was, 
in  ecclesiastical  language,  "  the  pastor  of  the  church 
and  the  minister  of  the  people."  Courtesy  and  long 
usage  had  so  settled  the  matter  this  way,  that  no 
other  was  thought  of.^ 


1  The  distinct  action  of  the  church  and  society  is  still  recognized 
among  the  Baptists  and  other  Congregationalists.     But  the  assent  of 
the  society  to  the  election  of  a  minister  by  the  church,  may  be  prov^ 
5 


50  MASSACHUSETTS    ECCLESIASTICAL  LAW. 

§  3.  Under  the  tax  laws,  however,  as  dissenters 
increased,  and  rights  were  freely  canvassed,  civil  and 
ecclesiastical,  it  was  not  easy  to  deny  to  the  pa- 
rishioners, in  general  (called  as  they  were  by  law 
to  support  the  minister),  the  right  to  take  an  active 
share  in  the  election  of  the  minister.  This  right 
might  be  inferred  to  belong  to  them,  commmiicants 
or  not,  if  the  Bill  of  Rights  had  been  silent  upon  the 
subject.  If  it  did  not  belong  to  them,  because  they 
were  not  communicants,  they  were  prompt  to  say 
that  taxation  and  representation  did  not  go  together ; 
and  for  what  had  they  been  fighting  and  talking 
this  long  time,  if  not  to  make  them  always  go  to- 
gether ? 

A  rugged,  revolutionary  style  of  reasoning,  not 
discouraged  by  dissenters  of  Orthodox  views,  out 
of  the  Congregational  churches,  much  less  by  those 
who  were  dissatisfied  inside  of  the  church,  what- 
ever the  cause  might  be,  personal  or  doctrinal.^ 

§  4.  At  length,  in  1820,  the  ancient  usage  of 
electing  the  minister  by  concurrent  vote  of  the 
church  and  parish  was  invaded  by  the  town  of 
Dedham,  which  threw  off  allegiance  to  the  church, 
chose  a  minister  against  the  remonstrance  of  two 
thirds  of  the  church  members,  and  appealed  to  the 
Supreme  Judicial  Court  to  sanction  their  choice. 

by  the  acts  of  the  society  without  any  concurrent  vote  of  the  society. 
Leicester  v.  Fitchburg,  7  Allen,  90,  1860.  In  the  Methodist  church, 
the  right  of  laymen  to  share  in  the  election  of  ministers,  and  to  be  rep- 
resented in  the  General  Conference,  is  still  in  question.  Meth.  Quar- 
terly, 1860,  228;  1863,475. 
1  9  Examiner,  1. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  51 

If  the  Dedham  case  had  been  the  triumph  of  an 
Orthodox  parish  over  an  Orthodox  church,  in 
choosing  a  minister,  it  would  have  been  noticeable. 
Nearly  one  hundred  years  had  passed  since  a  town 
had  claimed  any  rights  distinct  from  the  church.^ 
But  Mr.  Lamson,  elected  by  the  town  of  Dedham 
against  the  vote  of  the  church,  was  Unitarian  in  his 
views.  The  result  of  the  council,  who  settled  him 
against  the  remonstrance  of  the  chm*ch,  was  signed 
by  the  leading  Unitarian  clergymen,  —  Dr.  Channing, 
Dr.  Lowell,  and  Dr.  Kirkland.  The  case  involved 
the  triumph  of  a  suspected  theology,  that  had  been 
avowed  openly  hardly  five  years  before.^  The 
withdrawing  of  the  church  of  Dedham  was  in  keep- 
ing with  the  ancient  Protestant  manner  of  maintain- 
ing the  faith  by  separation  from  the  erring  body. 
In  its  course,  therefore,  the  Dedham  case  sum- 
moned up  both  the  Puritan  and  religious  elements, 
wherever  they  were  to  be  found  in  the  Common- 
wealth.^ 

The  pleadings  had  been  settled  before  Judge 
Jackson  in  1818.  In  November,  1819,  the  facts 
wxre  settled  by  a  jury  before  Judge  Wilde.  In 
both  instances,  the  decision  was  against  the  seced- 
ing church.  The  entire  case  was  then  re-argued  by 
Mr.  Webster  and  Mr.  Metcalf,  before  the  whole  court, 

iThe  solitary  instance  was  the  town  of  Middleboro',  in  1745. 
In  the  Fitchburg  case,  1801,  a  majority  of  the  parish  adhered  to  a 
minority  of  the  church,  and  together  they  left  the  parish  church. 

2  The  earlier  and  later  progress  of  Unitarianism  is  traced  in  Sprague'a 
Annals,  vol.  8. 

3  60  Examiner,  64,  81. 


52  MASSACHUSETTS  ECCLESIASTICAL  LAW. 

a  few  months  after  the  convention  for  revising  the 
constitution  had  risen.^ 

Chief  Justice  Parker,  who  had  presided  in  the 
convention  with  great  dignity  and  impartiality,  giv- 
ing the  final  decision  in  the  Dedham  case,  insisted 
that  he  merely  applied  principles  that  had  before  been 
laid  down,  —  old  principles  that  had  been  slumber- 
ing in  the  ecclesiastical  law  and  policy  of  Massa- 
chusetts since  1780,  and  long  before.  Chief  Justice 
Parsons  had  hinted  at  them  in  the  case  of  Avery 
and  Tyringham,  as  early  as  1807,  where  he  says, 
commenting  on  the  Bill  of  Rights,  "  Towns,  for 
any  cause,  may  abandon  the  ancient  usages  of  the 
country,  in  settling  a  minister;  and  may  settle  him 
with  or  without  the  consent  of  the  church."  ^ 
Whatever,  said  Chief  Justice  Parker,  the  usage  in 
settling  ministers,  the  Bill  of  Rights  of  1780  secures 
to  towns,  not  to  churches,  the  right  to  elect  the 
minister,  in  the  last  resort.  The  language  of  the 
bill  is,  "  The  several  towns,  parishes,  precincts,  and 
other  bodies  politic,  and  religious  societies,  shall  at 
all  times  have  the  exclusive  right  of  electing  their 
public  teachers ;  "  and,  whenever  a  town  determines 
to  assert  its  constitutional  authority,  there  is  no  pow- 
er in  the  Commonwealth  to  oppose  its  claim,  what- 
ever the  usage  may  have  been. 

§  5.  The  seceding  Orthodox  church  of  Ded- 
ham, comprising  two  thirds  of  the  church  members, 
established  themselves  on  the  opposite  side  of  the 


1  Baker  i*.  Fales,  16  Mass.  488. 

2  Avery  v.  Tyringham,  3  Mass.  181. 


MASSACHUSETTS    ECCLESIASTICAL   LAW.  5^ 

street  from  Mr.  Lamson's  society,  and  claimed  to  be 
the  true  church  of  Dedham,  and  hold  the  church 
property.  There  was  no  avoiding  the  question, 
which  of  the  two  is  the  true  church  of  Dedham ;  and 
this,  said  Chief  Justice  Parker,  had  also  been  settled 
by  Chief  Justice  Parsons  in  1811,  in  the  case  of  Burr 
and  Sandwich,  ^  where  a  minister  was  dismissed, 
against  the  remonstrance  of  three  fourths  of  the 
church  members,  and  afterwards  with  those  mem- 
bers formed  a  new  church,  yet  that  new  church,  with 
the  minister,  was  not  held  by  the  Court  to  be  the 
First  Church  of  Sandwich  ;  and  how  can  these  se- 
ceders  in  Dedham,  without  a  minister,  be  held  as  the 
First  Church  in  Dedham  ?  Chief  Justice  Parker  then 
proceeded  to  draw  the  inference,  that  the  seceders 
had  no  right  at  all  to  the  name,  property,  records, 
or  furniture  of  the  First  Church  of  Dedham. 

But  this  was  far  from  the  bottom  of  the  humilia- 
tion. It  was  laid  down,  that  a  church  separating  from 
the  parish,  for  any  cause,  lost  its  e^cistence  ;  that  nev- 
er in  Massachusetts  had  a  church  a  legal  existence, 
apart  from  a  parish.  The  law  knew  of  parishes 
as  corporations,  and  deacons  as  corporations,  and 
ministers  as  corporations  ;  but  the  church  proper  was 
no  corporation  or  quasi  corporation,  and  could  not, 
therefore,  hold  property  apart  from  the  parish,  what- 
ever its  faith. 

At  this  distance  of  time,  we  can  hardly  under- 
stand the  powerful  religious  as  well  as  legal  effects 
of  this  decision,  and  the  discussions  it  gave  rise  to 

1  Burr  V.  Sandwich,  9  Mass.  277.  What  act  amounts  to  secession  is 
a  question  for  the  jury.     1st  Baptist  Ch.  v.  Rouse,  21  Conn.  161,   1851. 

5* 


54  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

The  burning  of  a  minister  on  Boston  Common  might 
have  attracted  the  eyes  of  Christendom  more  ;  more 
tears  would  have  been  shed ;  but  for  searching  the 
faith  of  the  Massachusetts  man,  for  making  mar- 
tyrs in  all  towns,  precincts,  and  parishes,  nothing 
could  be  devised  superior  to  this  far-reaching  de- 
cision. 

It  was  for  high  truths  that  the  Orthodox  churches 
of  Eastern  Massachusetts  were  ejected ;  but  owing 
to  their  previous  connection  with  the  State,  and  the 
piece-meal  character  of  their  exodus,  they  failed  to 
obtain  the  credit  usually  awarded  to  acts  of  self- 
denial  on  a  large  scale.  From  Baptists  and  Meth- 
odists, who  had  not  suffered  from  Unitarianism,  they 
obtained  the  assurance  that  everything  was  hap- 
pening that  could  be  desired  for  the  separation  of 
church  and  state.  Their  more  distant  Presbyterian 
brethren  advised  them  to  mend  their  platform  of 
church  government,  and  make  it  correspond  with 
Scotch  models;  \vhile  their  Unitarian  neighbors 
assumed  towards  them  very  much  the  same  attitude 
that  the  English  Conformists  of  1662  had  assumed 
towards  their  nonconforming  brethren.^ 

In  Eastern  Massachusetts,  half  the  towns  saw 
their  most  devout  church  members,  deprived,  by  a 
printed  report  of  thirty  pages,  of  meeting-house, 
parish  property,  church    records,  communion   furni- 


^  In  the  matter  of  securing  public  approbation,  the  Free  Church 
of  Scotland,  in  1843,  was  much  more  fortunate  than  the  Orthodox 
churches  of  Massachusetts  in  1820.  See  Examiner,  54,  264;  Prince 
ton  Repertory,  1844. 


MASSACHUSETTS   ECCLESIASTICAL   LAW.  55 

ture,  all  the  material  part  of  the  church,  and  com- 
pelled to  begin  their  ecclesiastical  life  anew.^ 

Plain  men  could  not  help  believing  that  the 
Bill  of  Rights  of  1780,  by  connecting  towns  and 
churches,  did  not  mean  to  subvert  the  ancient 
Orthodox  faith.  They  claimed  that  the  Common- 
wealth in  her  courts,  if  she  upheld  any  faith,  should 
uphold  the  ancient  Orthodox  faith  of  the  fathers. 
They  could  not  understand  why  the  Bill  of  Rights 
should  be  converted  into  a  lever  to  pry  Orthodox 
ministers  and  churches  out  of  their  places.  It 
was  not  left  to  plain  men  alone  to  bemoan  the 
Dedham  decision.  On  the  one  hand,  legal  critics, 
opposed  to  the  Dedham  decision,  maintained,  with 
great  force,  that  the  distinction  between  church  and 
parish  had  been  obvious  in  Massachusetts  from  the 
beginning ;  the  very  papers  in  the  Dedham  case 
containing  deeds  from  the  church  to  the  parish, 
from  the  parish  to  the  church.  Let  it  be  that  the 
town  may  elect  the  minister  in  spite  of  the  church, 
it  will  not  follow  that  the  church  is  no  corporation. 
The  Commonwealth  makes  school  districts  corpo- 
rations by  treating  them  as  such ;  they  must  be 
corporations  in  order  to  live ;  and  surely  the  life  and 


i  Taking  the  ejected  nonconformists  of  1662  at  two  ninths,  the 
Massachusetts  ejectments  in  proportion  were  quite  as  large.  In  Con- 
necticut, but  one  church,  Brooklyn,  was  obliged  by  Unitarianism  to 
give  up  its  meeting-house. 

See  "  The  Historical  Sketch  of  Congregational  Churches  in  Mas- 
sachusetts," by  Kev.  Joseph  S.  Clark,  d.  d.,  for  local  and  minute  infor- 
mation. Also  "  The  Exiled  Churches  of  Massachusetts,"  in  the 
Congregational  Quarterly,  July,  1863. 


56  MASSACHUSETTS  ECCLESIASTICAL    LAW. 

dignity  of  the  school  district  has  not  been  more  dear 
to  the  Commonwealth  than  the  life  and  dignity  of 
the  church.  The  church  is  not  to  be  implied  out 
of  legal  existence  by  statutes  ^  passed  to  aid  her  in 
holding  property,  when  such  statutes  can  be  more 
sensibly  interpreted  by  implying  her  in  legal  and 
independent  existence ;  least  of  all  is  it  to  be 
charged  on  the  Convention  of  1780,  that  they  in- 
tended to  put  her  out  of  existence  by  the  Bill  of 
Rights,  when  there  is  not '  a  surviving  member  of 
that  convention  who  believes  it. 

Those  who  are  curious  may  see  the  legal  ingredi- 
ents of  the  Dedham  decision  as  early  as  1812,  in  the 
case  of  Boutelle  v.  Cowdin,  9  Mass.  254,  where  it 
was  successfully  argued  by  Bigelow  and  Lincoln, 
on  motion  for  a  new  trial,  that  the  plaintiff,  a  deacon 
of  a  church  in  Fitchburg,  could  not  maintain  suit 
on  a  note  given  in  February,  1805,  to  the  church ; 
because  neither  church  nor  deacon  had  any  standing 
in  court  until  June,  1805,  when  the  religious  society, 
to  which  the  church  belonged,  was  incorporated.'- 

On  the  other  hand,  there  were  legal  critics, 
who  defended  the  Dedham  decision  with  abundant 
acuteness ;  insisting  that  the  Bill  of  Rights  was  en- 
acted in  1780,  when  all  parties  were  Orthodox,  and 
it  was  not  to  be   presumed  that  Samuel  Adams,  a 


1  1785,  ch.  51,  §  1  ;  Gen.  St.  ch.  31,  §  1. 

'^  The  theological  and  ecclesiastical  points  of  the  Dedham  case  are 
many  of  them  to  be  found  in  the  Fitchburg  Council  pamplilets,  1801  ; 
Dr.  Samuel  Worcester's  Life,  1,  263,  356;  Dr.  Bancroft's  Princeton 
Council  Defence,  1817;  also  in  the  "  Strictures"  of  J.  S.  on  Rev. 
Mr.  Thacher,  1785 


MASSACHUSETTS    ECCLESIASTICAL   LAW.  57 

deacon  of  the  Old  South  Church  in  Boston,  Gov- 
ernor Strong  of  Northampton,  and  Mr.  Phillips  of 
Andover,  lacked  vigilance,  and  allowed  words  to 
creep  into  the  bill  unadvisedly.  They  knew  well 
the  difference  between  church  and  parish,  if  there 
was  any.  The  church  was  not  accidentally  omitted 
when  they  gave  the  choice  of  the  minister,  in  the 
last  resort,  to  "  towns,  parishes,  precincts,  and  other 
bodies  politic,  or  religious  societies."  The  church 
was  formally  excluded  and  expressly,  in  conformity 
with  the  growing  democratic  sentiment  of  that  time, 
with  a  view  of  giving  all  those  the  right  of  electing 
the  minister  who  were  taxed  for  his  support. 

It  was  something  more  than  the  privilege  of  as- 
sisting to  elect,  that  the  towns  took  under  the  Bill 
of  Rights ;  it  was  the  exclusive  right  of  electing ; 
and  so  of  parishes,  and  so  of  precincts ;  and  so  of 
other  bodies  politic  not  included  under  the  name  of 
towns,  parishes,  and  precincts :  to  wit,  religious  soci- 
eties ;  which  religious  societies  were  certainly  not 
churches,  nor  are  they  churches  to  this  day  in  legal 
language.  As  to  churches  being  corporations,  there 
never  was  a  church,  not  connected  with  a  parish, 
sued  in  the  courts  of  the  Commonwealth ;  there 
never  was  a  deed  from  such  church  recorded  ;  no 
common  seal  of  such  church  was  ever  seen.  No 
church  makes  contracts  with  the  minister,  no  minis- 
ter ever  thinks  of  suing  a  church  for  his  salary. 
And  suing,  sealing,  and  contracting  are  the  badges 
of  corporations  in  courts  of  justice. 

We  cannot  repeat  all  that  was  said  on  both 
sides.     Without  farther  analysis,  we  may  fairly  say  : 


58  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

thus  the  battle  raged  for  ten  years  round  Dedham  as 
around  Troy  of  old ;  and  thus  did  the  war  sweep 
out,  and  cover  the  Commonwealth  through  the  peri- 
odicals and  ecclesiastical  councils  of  the  day.^ 

The  views  of  the  Court  are  supported  in  some  of 
the  early  ecclesiastical  council  pamphlets.  Thus,  in 
1745  at  Middleboro',  and  in  1806  at  Hingham,  it 
is  assumed,  without  discussion,  that  the  party  ad- 
hering to  the  parish  take  the  property  and  the  name. 
In  the  Salem  council,  1775,  the  name  is  expressly 
given  to  the  adherents.  After  the  Hadiey  church 
had  separated  from  the  Weathersfield,  the  General 
Court  of  Connecticut  held  the  Weathersfield  church 
to  be  the  true  church.^  This  principle  underlies  the 
decision  of  the  Free  Church  case  of  Scotland  and  the 
Old  School  Presbyterian  case.  In  Connecticut,  the 
court  holds  that  parish  property  is  indivisible  as  weU 
as  inseparable.  On  petition  of  inhabitants  of  Port- 
land, the  Legislature  passed  a  bill  that  the  parish 
funds  be  divided,  but  the  court  denied  its  validity. 
They  would  listen  to  no  analogies,  drawn  from  the 
division  of  towns  or   school  districts.^ 

And  now,  after  forty  years'  discussion,  the  ques- 
tions decided  in  Baker  v.  Fales  are  seen  to  be  full  of 
difficulty.  It  is  still  insisted  that  the  learned  judges 
erred  in  refusing  a  church  power  to  hold  property, 
because  it  was  an  association  unincorporated,  or  be- 

1  Spirit  of  the  Pilgrims,  vol.  1,  2.  Christian  Disciple,  vol.  2. 
Christian  Examiner,  1827,  1828. 

2  Trumbull,  I,  324.     So  in  New  Haven,  Bacon's  Hist.  Dis. 

8  First  Parish  in  Portland  v.  Second  Parish,  22  Conn.  Kep.  8.  p. 
Den  V.  Bolton,  7  Halstead,  206,  N.Jersey,  1831.  Cammeyer  v.  United 
Germ.  Luth.  Chhs.,  2  Sandford,  Ch.  216,  N.  Y.  1844.  Robertson  v. 
Bullions,  1  Kernan,  255,  N.  Y.  1858. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  59 

cause  it  was  separated  from  the  religious  society. 
On  the  other  hand,  whatever  eiTors  are  pointed  out, 
the  defenders  of  the  decision  insist,  that  the  learned 
judges  examined  the  case  in  the  spirit  of  the  old 
statutes  uniting  church  and  state ;  following  out 
the  policy  of  the  Commonwealth  indicated  in  the 
Bill  of  Rights  of  1780 ;  following  out  also  the  decis- 
ions of  the  Supreme  Judicial  Court  since  the  year 
1800. 

It  is  a  relief  to  turn  from  this  balancing  of  sys- 
tems and  doctrines,  denominational  and  state  poli- 
cies, personal  and  historical  questions,  which  cluster 
about  the  Dedham  case,  and  make  it  a  point  of  de- 
parture from  the  old  into  the  new  era  of  Massachu- 
setts ecclesiastical  law. 


CHAPTER    Y. 

The  Principles  of  the  Dedham  Case  applied  —  Brookfield  —  Hollis  Street  —  Amended 
Bill  of  Rights,  1834. 

§  1.  It  may  not  be  amiss  to  trace  the  rules  laid 
down  in  the  Dedham  case  still  farther,  to  see  if  they 
have  been  modified  since  1820. 

Chief  Justice  Parker,  who  gave  the  opinion  of  the 
full  court,  in  Baker  v,  Fales,  departed  this  life  in 
1830,  highly  honored  as  an  upright  judge ;  but  with 
him  the  courage  and  tenacity  of  the  lawyers  did 
not  die.  His  successor,  Chief  Justice  Shaw,  in  1830, 
gave  again  the  unanimous  decision  of  the  Court  in 
a  case  of  greater  hardship.^ 

The  Orthodox  minister  of  Brookfield  had  seceded 
with  a  majority-of  the  church  ;  indeed,  there  were 
left  but  two  male  members  remaining  in  the  old 
parish  meeting  house ;  yet  the  Court  decided  the 
old  church  was  entitled  to  the  property,  records,  and 
communion  furniture.  Mr.  Strong  of  Northampton, 
by  leave  of  the  Court,  argued  this  case  with  ful- 
ness, as  if  the  question  were  a  new  one ;  insisting 
that  churches  and  parishes  were  distinct ;  parishes 
and  towns  were  distinct ;  the  law  did  not  and 
could   not  blend   them ;   that   churches,   dependent 


1  Stebbins  v.  Jennings,  10  Pick.  172. 
f60) 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  61 

on  parishes  or  not,  might  well  hold  property  of  their 
own,  distinct  from  the  parish,  distinct  from  the  town ; 
that  no  separation  of  church  and  parish  could  anni- 
hilate the  church,  which  had  borne  such  separation 
repeatedly.  He  cited,  as  instances,  the  old  South, 
formed  in  Charlestown  and  moved  to  Boston  ;  the 
church  in  Cambridge,  moved  to  Hartford,  under 
Hooker ;  and  others  that  had  moved  from  England 
to  the  Colonies.^  But  no  impression  was  made  on  the 
Court.  The  chm-ch,  whatever  it  might  be  called  in 
popular  language,  was  in  law  no  corporation,  or  as- 
sociation, that  could  maintain  its  life  apart  from  the 
parish,  so  as  to  hold  this  property,  apart  from  the 
parish,  by  itself  or  its  deacons.  This  property,  say 
the  Court,  belonging  to  the  church  of  the  parish,  if  all 
the  members  of  the  church  seceded,  would  yet  remain 
for  the  benefit  of  a  church  that  might  afterwards  be 
gathered  in  connection  with  the  parish.  Again,  in 
1831,  it  was  decided  that  a  seceding  Orthodox  church 
could  not  retain  the  records  of  the  church  kept  by 
their  deceased  pastor ;  for  such  records  were  the  prop- 
erty of  the  church  which  was  connected  with  the 
parish,  and  then  worshipped  in  the  parish  meeting- 
house.2  From  1831,  the  rule  was  applied  without 
debate :  whoever  wishes  to  find  its  applications  may 
examine  the  liistories  of  towns  and  ecclesiastical 
councils  for  the  period ;  there  are  few  traces  in  the 
decisions  of  the  Supreme  Court. 

§  2.    It  was  not  until  1850,  that  a  modification  was 


1  See  his  argument,  Spirit  of  the  Pilgrims,  Vol.  5. 

2  Sawyer  v.  Baldwin,  11  Pick.  492. 


6^  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

made  of  the  Dedham  decision,  or  certain  expressions 
contained  in  the  Dedham  case,  which  tended  to 
merge  the  church  in  the  parish.  Then  it  was  per- 
ceived and  stated,  that  there  was  a  distinction  that 
the  law  recognized  between  the  church  and  the  par- 
ish,—  between  the  funds  of  the  church  and  the  funds 
of  the  parish,  so  long  as  church  and  parish  were 
united.  For  this  distinction,  we  are  indebted  to  the 
case  of  the  Hollis  Street  Church,  of  which  Mr.  Pier- 
pont  was  pastor.^ 

The  pew-holders,  through  the  attorney  general, 
invoked  the  aid  of  the  Court  to  inquire  into  the  ap- 
plication of  funds  that  had  been  left  to  the  Hollis 
Street  Church  at  various  times.  The  Court  ruled 
that  the  church,  though  no  corporation  or  quasi  cor- 
poration, has  such  funds  under  its  own  control ;  they 
are  not  under  the  control  of  the  deacons  even  ;  that 
neither  church  nor  deacons  are  obliged  to  render 
an  account  to  the  parish  of  such  funds,  though  they 
apply  through  the  attorney  general.^  But  this  ac- 
count refused  to  the  parish  was  ordered  to  be  given 
in  1852,  when  a  committee  of  the  church  applied  for 
it.2  It  is  satisfactory  to  find  the  Court  recognizing  the 
church  as  a  body  capable  of  holding  and  managing 
its  own  property  so  long  as  it  retains  its  connection 
with  the  parish. 

What  might  now  be  the  fate  of  a  church  separated 

1  Parker  v.  May,  5  Cash.  336.  The  usage  of  the  Old  South  as  to 
the  business  and  records  of  the  church  and  society  may  be  found  in 
Wisner's  Old  South,  54. 

2  Parker  v.  May,  5  Gush.  330. 
8  Weld  V.  May,  9  Gush.  181. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  63 

from  a  parish,  it  is  needless  to  speculate.  Suf- 
fice it  to  say,  the  intimations  of  the  Court  are  no 
more  favorable  to  its  separate  existence  than  they 
were  in  1820.  At  the  same  time  it  is  to  be  noticed, 
that  the  apphcation  of  the  Dedham  case  has  been 
confined  in  several  instances  to  parishes  strictly  ter- 
ritorial ;  ^  and  it  is  admitted  by  the  Court,  that  the 
amended  Bill  of  Rights  of  1834  wrought  certain 
changes  in  the  ecclesiastical  law  of  Massachusetts, 
indirectly  as  well  as  directly.^ 

In  our  haste  to  complete  the  examination  of 
this  topic,  we  find  ourselves  in  the  midst  of  the  year 
1850,  somewhat  in  advance  of  the  subject  of  church 
and  state  ;  let  us  now  retm-n. 

The  elastic  Orthodox  Congregational  churches 
soon  adjusted  themselves  to  the  new  order  of  things. 
With  the  decisions  following  in  the  line  of  the  Ded- 
ham case  ended  all  hope  of  any  support  of  religion 
from  the  State,  directly  or  indirectly.  It  may  be  thai 
a  few  fondly  anticipated  from  the  Commonwealth  a 
restoration  such  as  Massachusetts  Colony  enjoyed 
from  royal  bounty,  when  her  civil  charter  was  taken 
away,  and  the  modest  colony  of  Massachusetts  Bay 
re-appeared  under  the  new  charter  of  William  and 
Mary,  with  enlarged  bounds,  including  Plymouth, 
Maine,  and  Nova  Scotia.  But  the  more  intelligent 
were  disposed  to  renounce   their  former  connection 


1  Tibball's  v.  Bidwell,  1.  Gray,  399. 

2  Richardson  V.  Butterfield,  6.  Cush.  191,  That  a  territorial  parish 
retains  its  characteristics  somewhat  tenaciously,  see  Wood  v.  Gushing, 
6  Met.  455.  See  "  Rights  of  the  Gongregational  Churches,"  Gongl. 
Quarterly,  Oct.  1863. 


64  MASSACHUSETTS   ECCLESIASTICAL   LAW. 

with  the  State,^  and  everything  bearing  the  sem- 
blance of  an  act  of  uniformity.  Very  far  were 
they  from  blessing  the  laws  that  had  heretofore 
tied  churches  and  towns  together,  and  worked  out 
mischievous  surprises  whenever  set  in  motion. 
They  were  rather  inclined  to  exclaim  with  Lieu- 
tenant Mathew  Fuller :  "  all  such  laws  are  wicked 
and  devilish  laws,  and  the  Devil  sat  at  the  stern 
when  they  were  enacted."  Uttering  this  rough 
sentiment  had  cost  the  lieutenant  forty  shillings  in 
1658,  at  Plymouth  Coui*t.  In  1830,  any  man  might 
have  uttered  it  anywhere  in  Massachusetts  without 
fine  or  contradiction.  So  unanimous  had  the  dis- 
satisfaction become,  that,  in  1834,  an  amendment  of 
the  third  article  of  the  Bill  of  Rights  was  adopted, 
by  which  the  ancient  policy  of  the  Commonwealth, 
derived  from  the  mother  country,  steadily  main- 
tained for  two  hundred  years,  was  entirely  aban- 
doned.2 

The  Bill  of  Rights,  as  it  now  stands,  recog- 
nizes "  the  public  worship  of  God,  and  instruction 
in  piety  and  morality,  as  promoting  the  happiness 
and  prosperity  of  a  people,  and  the  security  of  re- 
publican government ; "  but  makes  it  no  duty  of  the 
Commonwealth  to  enforce  such  worship  or  instruc- 
tion. Religious  societies  have  the  power,  by  this 
amendment,  "  to  elect  their  pastors,  contract  with 
them  for  their  support,  to  raise  money  to  erect  and 

1  See  Spirit  of   the  Pilgrims,  Vol.  4th.      15  Examiner,  337,  351. 
Biblical  Repository,  1835,  207-353. 

2  Tills  amendment  was  adopted  by  the  very  decisive  vote  of  32,234 
to  3,273.     Senate  Doc.  No.  3,  1834. 


MASSACHUSETTS    ECCLESIASTICAL   LAW.  65 

repair  meeting-houses,  maintain  religious  instruc- 
tion, and  pay  necessary  expenses."  The  Common- 
wealth thus  discharges  itself  of  its  functions  of 
nursing  and  fostering  the  churches. 

The  Bill  says  nothing  of  towns  being  compelled 
to  support  preaching,  or  of  individuals  being  com- 
pelled to  attend  preaching.  The  high  prerogative 
of  electing  the  minister  in  the  last  resort  is  conferred 
by  the  amended  Bill  upon  the  religious  society,  and 
upon  the  religious  society  alone.^  While  we  con- 
gratulate ourselves  that  the  old  policy  of  tying  the 
church  to  the  town,  with  all  its  compromises,  is  at 
an  end,  we  still  hold  the  doctrine  that  the  church 
shall  elecf  its  minister,  though  not  formally  em- 
bodied in  the  Bill  of  Rights,  to  be  a  good  doctrine. 
And  around  it  Christian  men  may  be  called  to 
contend,  hereafter  as  in  times  past,  with  towns,  pre- 
cincts, and  parishes,  if  they  would  not  sink  in  faith 
and  practice.2 

1  In  the  Presbyterian  church,  the  usage  as  to  electing  the  minister  is 
not  uniform.  In  some  cases,  all  vote  who  contribute  to  his  support ; 
in  others,  only  adult  males ;  in  others,  communicants  only ;  in  others, 
all  baptized  persons.  Repertory,  1863,  480.  For  the  Baptist  usage, 
see  Inhabitants  of  Leicester  v.  Fitchburg,  7  Allen,  92. 

2  In  Massachusetts,  there  has  been  a  good  understanding  between 
the  General  Court  and  the  churches  of  the  various  denominations.  A 
certain  unfriendly  carriage  toward  the  established  order  is  noticed  in 
the  General  Court  of  Connecticut,  about  the  year  1743,  forbidding  min- 
isters to  preach  abroad  ^vithout  invitation.  This  grew  out  of  the  great 
awakening.  6  Monthly  Spectator,  198  ;  8  Quarterly  Spectator,  497  ; 
New  Englander,  1853,  195.  In  Virginia,  religious  societies  cannot  tax 
themselves.  Repertory,  1848,  186.  That  it  is  the  duty  of  the  church, 
rather  than  the  religious  society,  to  support  the  gospel,  see  2  Cong. 
Quarterly,  329.  Also  15  Christian  Re\aew,  420.  See,  as  to  essential 
spirituality  of  the  church,  12  Bib.  Sac.  724. 

6* 


CHAPTER    VI. 

Churches  —  Their  Members  —  Excommunication  —  Discipline  —  Rights  and  Usages 
of  Churches  —  Cambridge  Platform  —  Synod  —  Creeds  —  Council  Pamphlets  as 
to  Usages  and  Creeds. 

§  1.  Many  regard  Massachusetts  as  a  laboratory 
of  colonial  times,  where  experiments  were  first 
tried  in  order  that  they  might  be  applied  more  ad- 
vantageously afterwards  to  a  larger  sphere,  possi^ 
bly  to  the  whole  world.  To  such  reflecting  persons, 
Massachusetts  and  Old  Colony  Records  wrap  up 
substantial  novelties  in  ecclesiastical  and  civil  gov- 
ernment that  will  maintain  their  ground  for  ages 
to  come.  We  half  assent  to  this  theory,  provided 
the  making  of  experiments  is  extended  so  as  to  em- 
brace the  Massachusetts  of  our  own  century.  We 
confirm  ourselves  in  this  pleasing  belief,  by  seeing 
something  new  under  the  sun,  here  in  Massachusetts 
in  1820 :  to  wit,  a  large  and  influential  body  of 
Christians  essentially  benefited  by  lawsuits.  With- 
out claiming  for  the  Orthodox  Congregational 
churches  too  great  advantages  flowing  from  the 
Dedham  case  and  its  severe  discipline  ;  without  in- 
sisting that  the  Free  Church  of  Scotland,  turned 
out  of  kirk  and  manse  by  the  Auchterarder  decis- 
ions, followed  exactly  in  the  wake  of  the  Dedham 
case,  —  we  see,  or  think  we  see,  a  coiifirm:ition  of 
our  theory,   a  tendency  toward  a  more    congrega- 

(GO) 


MASSACHUSETTS    ECCLESIASTICAL   LAW.  67 

tional  condition  of  the  religious  world,  arising  from 
the  Old  and  New  School  lawsuits  of  the  Presbyterian 
church.  We  are  hopeful  Congregationalists ;  we 
compass  the  earth  congregationally.  But  a  truce 
to  speculations  engendering  ecclesiastical  pride, 
while  we  turn  our  attention  to  the  churches  of  Mas- 
sachusetts.^ 

§  2.  Living  theologians  have  defined  a  Congrega- 
tional church,  as  a  society,  distinct  and  complete  in 
itself,  of  visible  Christians,  who  have  covenanted 
with  each  other  to  meet  together  for  the  worship  of 
God,  for  celebrating  the  Lord's  supper,  and  for  other 
religious  observances. 

A  Congregational  church  is  described,  by  Chief 
Justice  Shaw,  as  an  "  aggregate  body  or  association, 
—  not  a  corporation  or  quasi  corporation,  —  formed 
within  the  religious  society  or  parish  ;  set  apart 
&om  the    rest  of  the  society  for  peculiar  religious 


1  We  have  the  high  authority  of  the  Princeton  Kepertory  (1862, 
598),  for  saying  that  "  no  church  has  anything  to  boast  of."  The  Pres- 
byterian case,  Commonwealth  v.  Green,  occurred  in  1837.  By  it, 
five  hundred  and  nine  ministers  and  sixty  thousand  communicants  lost 
their  connection  with  the  Old  School  General  Assembly.  Repertory, 
1840,  92.  The  Scotch  cases,  extending  from  1836  to  1843,  by  which 
one  third  of  the  established  clergy  of  Scotland  were  deprived  of  their 
livings,  are  cited  and  explained  in  May's  Constitutional  History  of  Eng- 
land, vol.  2,  ch.  14  ;  Repertory,  1844,  86.  The  points  of  the  Metho- 
dist church  cases.  North  and  South,  which  occurred  in  1851,  are  stated 
16  Howard,  301 ;  Meth.  Quar.  1851,  396,  665  ;  also  in  1  Choate's  Me- 
moir, 170.  Our  Baptist  brethren,  in  1845,  like  the  Methodists,  had 
their  churches  divided  by  slavery ;  but  as  they  were  Congregationalists, 
pure  and  simple,  they  have  had  no  international  lawsuits.  See  10 
Christian  Review,  479  and  11,  114. 


68  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

observances,  for  the  celebration  of  the  Lord's  supper^ 
and  for  mutual  edification."  ^ 

A  Congregational  church,  however  defined,  is 
allowed,  by  a  statute  as  old  as  1786,  "  to  hold  prop- 
erty by  grant  or  donation,  to  or  for  its  own  use,  the 
income  of  which,  exclusive  of  the  income  of  par- 
sonage lands,  does  not  exceed  two  thousand  dol- 
lars." ^  How  definitely  and  emphatically  the  prop- 
erty belonging  to  the  church  belongs  to  it,  and  does 
not  belong  to  the  deacons,  —  who  are  mere  trustees 
"  to  take  and  hold  property  for  the  church,"  —  nor  to 
the  parish  in  any  sense,  may  b&  seen  in  the  case  of 
Weld  V.  May,  just  cited.^ 

§  3.  The  Church  and  its  members  are  very  prom- 
inent in  the  colonial  laws ;  but  in  our  day,  half  a 
page  gives  them  all  the  protection  they  require  of 
the  Legislature.  Until  1662,  it  was  the  law  in  Mas- 
sachusetts, as  in  England,  that  only  church-members 
in  regular  standing  could  hold  office  or  vote  for  civil 
officers. 

1  Weld  V.  May,  9  Cush.  181.  For  the  Presbyterian  idea  of  the 
church,  sec  Repertory,  1846,  137;  1853,  253.  For  the  Orthodox,  see 
Cong.  Quar.  July,  1861  ;  Bib.  Sac.  April,  1865.  For  the  Baptist, 
22  Chr.  Review,  593  ;  20,  422.  For  the  Episcopal,  distinguishing  re- 
generation from  the  mystical  faculty,  14  Church  Review,  635.  For  the 
Methodist,  see  Meth.  Quar.  1845,  153.  For  the  Universalist,  in 
which  baptism  and  the  Lord's  supper  are  optional,  see  General  Con- 
vention, 1863.  The  Dedham  case  intimates  that  there  is  no  distinc- 
tion between  the  church  and  congregation.  So  Dr.  Larason,  in  17  Ex- 
aminer, 177. 

2  Gen.  Stat.  ch.  31,  §  7. 

^  In  Parker  v.  May,  5  Cush.  350,  the  court  recognize  "  it  to  be  one 
of  the  notorious,  old,  and  established  usages  of  all  Congregational 
churches,  that  the  management  of  their  secular  affairs  is  in  a  majority 
of  the  adult  male  members  present  at  a  meeting  called  in  the  usual  way." 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  69 

In  the  interval  from  1654  to  1662,  the  best  minds 
were  employed,  and  the  depths  of  theology  sounded, 
in  the  adjustment  of  this,  the  greatest  question  of 
church  and  state.  Synods  of  Connecticut  and 
Massachusetts,  the  members  of  the  venerable  Con- 
federation for  the  United  Colonies  of  New  England, 
all  expended  their  wisdom  in  attempting  to  enlarge 
the  suf&age  without  damage  to  the  church,  long  be- 
fore there  had  been  any  thought  of  abolishing  tests 
in  the  mother  country.  ^ 

During  the  first  thirty  years  of  colonial  history, 
there  must  have  been  compensations  that  we  cannot 
understand,  which  induced  the  honest  non-communi- 
cant of  Massachusetts  Bay  to  shoulder  his  musket, 
fight  the  Indians,  pay  taxes,  and  do  hard  work 
for  the  Commonwealth,  without  the  hope  of  becom- 
ing a  member  of  the  Great  and  General  Court  or  a 
Justice  of  the  Peace.^ 

It  was  as  guardians  of  the  church,  that  persons 
unsatisfactory  in  doctrine  were  ordered  by  the  Gen- 
eral Court  to  quit  the  colony  of  the  bay,  sometimes 
with  a  recommendation  to  go  to  Rhode  Island.  Re- 
peated orders  are  given  to  towns  to  disarm  the  fol- 
lowers of  Mrs.  Hutchinson,  a  potent  woman  in 
state  as  well  as  church,  during  the  antinomian 
controversy. 

However  important  the  offender,  he  could  not  es- 
cape the  Court's  jurisdiction.    Mr.  WiUiam  Pyncheon, 

1  Avery  u.  Tyringham,  3  Mass.  180.  2  Hazard  State  Papers,  366. 
2  Palfrey,  491. 

■^  At  Plymouth  Colony,  voters  and  office-bearers  were  not  required  to 
be  church-members. 


70  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

of  Springfield,  an  honored  founder  of  the  town,  for 
publishing  in  London  a  work  supposed  to  contain 
the  new  school  theology  in  a  rudimentary  state,  had 
the  mortification  to  see  his  book  burned  in  1650,  on 
a  lecture  day,  by  the  common  hangman  ;  and  he  was 
himself  obliged  to  attend  the  Great  and  General 
Court  in  Boston  for  more  than  a  year,  and  report 
progress  from  time  to  time,  how  his  conversion  to 
the  established  views  on  the  atonement  progressed, 
under  conferences  with  Mr.  Cotton,  Mr.  Norris,  and 
Mr.  Norton.i 

§  4.  The  churches  of  Massachusetts  now  retain 
the  salutary  power  of  disciplining  and  excommuni- 
cating erring  members,  that  they  had  in  1640.  That 
it  may  be  done  openly  and  effectually,  the  Supreme 
Judicial  Court  decided  in  1850,  in  a  suit  brought 
against  the  Rev.  Dr.  Storrs,  of  Brain  tree,  for  slander, 
for  having  read  publicly  from  his  pulpit,  by  vote  of 
his  church,  an  excommunication. 

These  proceedings  of  the  church  are  said  to  be  quasi 
judicial ;  and  those  who  take  part  in  the  excommu- 
nication in  good  faith  are  protected  from  suit,  whether 
they  make  complaint,  give  testimony,  act  and  vote, 
or  pronounce  the  result  orally  or  in  writing.  In  this 
case  the  offence  was  fully  stated.  The  right  of  deal- 
ing with  a  member  and  excommunicating  him,  and 
reading  publicly  the  excommunication,  was  consid- 
ered as  part  and  parcel  of  the  "  right  of  the  churches 
to  use,  exercise,  and  enjoy  all  their  accustomed  privi- 
leges and  liberties  respecting  divine  worship,  church 

1  4  Mass.  Kec.  48.     2  Palfrey,  New  England,  395. 


MASSACHUSETTS  ECCLESIASTICAL    LAW.  71 

order  and  discipline,"  confirmed  to  the  churches  by 
the  Statutes  of  1640,  1799,  ch.  87 ;  1834,  ch.  183 ; 
and  by  the  Rev.  Stat.  ch.  20,  §  3.^ 

§  5.  In  this  case,  the  church  appears  to  have  pro- 
ceeded against  the  delinquent  member  on  its  own 
motion.  But  it  is  not  necessary  for  proceedings  to 
commence  with  the  church.  It  has  been  decided, 
that  a  church  may  proceed  against  one  of  its  mem- 
bers on  the  complaint  of  one  who  is  not  a  member;'^ 
and  the  action  of  the  church,  withdrawing  fellow- 
ship, admonishing  a  member,  or  excommunicating 
him,  is  a  defence,  in  a  suit  of  slander  or  libel,  not 
only  of  the  minister  and  church-members,  but  also 
of  the  party  not  a  member  who  made  the  complaint. 

There  are  no  cases  defining  accurately  the  limits 
of  this  protection  of  ministers,  church-members,  and 
complainants,  in  the  matter  of  discipline.  The 
ground  of  the  protection  is  that  the  church  is  a  tribu- 
nal to  which  the  member  has  already  submitted  him- 
self ;  and  the  protection  is  adequate  without  proving 
the  entire  regularity  of  the  church  proceedings. 

The  Court  have  had  no  occasion  to  say  to  what  ex- 
tent the  law  of  privileged  communications  applies 
in  such  cases,  nor  how  long  the  privilege  lasts.  ^ 

^  Farnsworth  v.  Storrs,  5  Cush.  Gen.  Stat.  ch.  30,  §  3.  That  the 
Congregational  method  of  discipline  by  the  local  church  is  scriptural 
and  efficient,  see  Dexter's  Congregationalism,  260. 

"  Remmington  v.  Congdon,  2  Pick.  313.  S.  P.  York  v.  Pease,  2  Gray, 
282.     Barrows  v.  Bell,  7  Gray,  314. 

2  As  to  words  uttered  in  the  course  of  discipline,  privileged  commu- 
nications, and  confessions,  see  Jarvis  v.  Hathaway,  3  Johnson,  181  : 
1808.  Commonwealth  v.  Drake,  15  Mass.  161,  was  a  voluntary  con- 
fession to  church-members  by  a  member.  Commonwealth  v.  Knapp, 
9  Pick.  496,  was  a  confession  to  a  minister.     Fairchild  v.  Adams,  11 


72  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

It  is  proof  of  the  general  fairness  of  churches  in 
dealing  with  members,  that  there  are  few  decisions 
in  the  reports,  where  the  rights  of  members  are 
brought  into  discussion.  It  is  intimated,  however, 
that  the  ecclesiastical  character  of  the  proceedings 
wiU  not  protect  parties  who  employ  them  as  a  cover 
for  malice.^ 

§  6.  In  doctrine  and  discipline,  the  churches  of  Mas- 
sachusetts are  quite  free.  At  the  same  time,  they  have 
taken  great  pains  to  be  in  agreement  with  the 
churches  of  England  and  the  continent,  so  far  forth 
as  they  were  conformed  to  the  New  Testament. 
When  the  divines  at  Westminster,  in  February, 
1648,  had  completed  their  confession  of  faith  for  the 
use  of  the  churches  of  England  (mainly  following 
the  synods  of  Dort,  of  1619),  it  was  unanimously 
adopted  by  the  divines  assembled  at  Cambridge  in 
October  of  the  same  year. 

This  Westminster  confession  of  faith  and  doctrine, 
however,  was  adopted,  say  the  divines  at  Cambridge, 
for  "  substance  of  doctrine,"  —  "  excepting  only  some 
sections  in  the  25th,  30th,  and  31st  chapters  of  the 
confession,  which  concern  points  of  controversy 
in  church  discipline,  touching  which,  we  refer  our- 
selves to  the  draft  of  church  discipline  in  the  ensu- 
ing treatise."  ^     Then  follows  the  platform  in  seven- 

Cush,  549,  was  a  confession  by  a  minister  to  a  ministerial  association. 
See  post,  ch.  18,  ^  12. 

1  For  strictures  on  tlic  ancient  practice  of  confessing  scandalous  of- 
fences before  tlie  con;jjregation,  see  5  Christian  Spectator,  229;  9  Chris- 
tian Review,  416,  as  to  discipline  among  the  Baptist  churches. 

2  The  Church  of  England  requires  "  unfeigned  assent  and  consent." 
Hodgson  V.  Oakley,  4;  Ecclesiastical  Cases,   183;  but  very  decided 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  73 

teen  chapters,  occupying  thirty-four  duodecimo 
pages. 

In  May,  1658,  the  Congregational  churches  of 
England,  assenting  to  the  doctrinal  statements  of 
the  Westminster  Assembly,  but  objecting  to  the 
methods  of  church  government  set  forth  by  the 
Westminster  divines  as  too  presbyterial,  issued 
the  Savoy  Confession  as  the  symbol  for  the  govern- 
ment of  their  churches. 

Again,  the  Massachusetts  churches,  in  the  sy- 
nod of  Boston,  still  keeping  up  their  English  con- 
nections, "  consulted  and  considered,"  on  the  12th 
of  May,  1680,  "  of  a  confession  of  faith,"  and  that 
which  was  "  consented  unto  by  the  elders  and  mes- 
sengers of  the  Congregational  churches  of  Eng- 
land, who  met  at  the  Savoy,  was  twice  publicly 
read,  examined,  and  approved  of."  What  little  "  vari- 
ation we  have  made  from  the  one  (the  Westminster), 
in  compliance  with  the  other  (the  Savoy),  may  be 
seen  by  those  who  please  to  compare  them." 

"  As  to  what  concerns  church  government,  we  re- 
fer to  the  Platform  of  Discipline  agreed  upon  by  the 
elders  and  messengers  of  the  churches.  Anno.  1648." 

On  the  19th  of  May,  1680,  one  week   after  the 

changes  are  proposed.  London  Quarterly,  April,  1865.  The  phrase 
"  substance  of  doctrine,"  employed  by  Congregationalists  and  Ameri- 
can Presbyterians  in  assenting  to  symbols,  differs  from  the  Scotch  and 
English  form  of  assent.  9  Spectator,  622;  Repertory,  1858,  672. 
Contra,  62  Examiner,  116.  The  formula  adopted  by  the  General  As- 
sociation of  Ministers  in  New  Hampshire,  1747,  is,  "  We  continue  to  ad- 
mit as  articles  of  faith,  the  doctrines  of  Christianity  as  they  are  general- 
ly expressed  in  the  Assembly's  Shorter  Catechism."  The  Vermont  As- 
sociation in  1795,  and  the  Massachusetts  in  1802,  do  the  same. 
7 


74  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

Boston  Synod,  the  General  Court  held  at  Boston  at 
the  request  of  several  elders,  in  the  name  of  the  late 
synod,  ordered  the  confession  of  faith  agreed  upon 
by  the  synod,  (the  Savoy,  consisting  of  thirty-two 
chapters,  occupying  thirty-two  duodecimo  pages,) 
and  the  Cambridge  Platform  of  1648,  to  "  be  printed 
for  the  benefit  of  the  churches  in  present  and  after 
times." 

The  reforming  synod  of  1680,  and  the  three  im- 
portant synods  which  preceded  it,  were  requested  to 
assemble  by  the  General  Court.  The  first  came  to- 
gether at  Cambridge  in  1637,  and  condemned  anti- 
nomianism  in  eighty-seven  propositions,  after  a  session 
of  three  weeks.^  The  second  was  called  at  the  urgent 
request  of  friends  in  England.  It  met  at  Cambridge, 
beginning  in  1646,  and  ended  in  October,  1648,  pro- 
ducing the  platform ;  which  the  General  Court  sub- 
mitted to  the  churches  for  their  approval.^  The  third 
general  synod  met  at  Boston  in  the  autumn  of  1662. 
The  main  topics  were  baptism  and  the  consociation 
of  churches.  The  result  covered  thii'ty-two  duodecimo 
pages,  and  its  principal  feature  was  the  half-way 
covenant.  When  Messrs.  John  Wilson,  Sr.,  Richard 
Mather,  John  AUin,  and  Zech.  Symmes,  on  the  8th 
of  October,  1662,  presented  this  result  to  the  General 
Court,  "  The  Court  judged  meet  to  commend  the 
same  unto  the  consideration  of  all  the  churches  and 
people  of  this  jurisdiction,  and  for  that  end  ordered  the 
printing  thereof,  the  original  copy  being  left  on  file."  ^ 

144  Examiner,  321. 

2  2  Mass.  Records,  200,  288. 

'  4  Mass.  Records,  60;  Congregational  Quarterly,  July,  1862. 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  75 

The  platform  for  the  churches  of  Massachusetts, 
thus  ordered  to  be  printed  by  the  General  Court  in 
1680,  at  the  request  of  the  Reforming  Synod,  was 
considered  as  near  the  model  of  the  Scriptures  of 
the  New  Testament  as  could  well  be  obtained. 
President  Oaks  regarded  it  "  the  discovery  and 
settlement  of  the  Congregational  way,  the  boon,  the 
gratuity,  the  largeness  of  Divine  bounty."  At  the 
same  time  it  was,  says  the  President,  the  happy 
medium  between  "  Presbyterianism  and  Brown- 
ism."  ^  The  preface  of  the  Cambridge  Platform 
shows  how  much  the  Presbyterians  were  intended 
to  be  conciliated.  And  the  body  of  the  platform 
abounds  in  Presbyterial  expressions  :  much  is  said 
of  church  officers,  synods,  presbyteries,  ruling 
elders,  communion  of  churches  in  the  third  way, 
the  civil  magistrates'  power  in  matters  ecclesiastical, 
the  power  of  privilege,  and  the  power  of  the  brother- 
hood. A  compromise  in  matters  of  church  govern- 
ment, the  platform  held  Presbyterial  elements  at  the 
first,  which  have  been  eliminated  by  the  usage  and 
common  consent  of  the  churches  of  the  Congre- 
gational order  in  Massachusetts.  The  synod,  the 
presbytery,  the  ruling  elders,  and  the  communion 
of  churches  in  the  third  way,  have  disappeared ; 
while  the  distinction  between  "  the  power  of 
privilege  and  the  power  that  belongs  to  the 
brotherhood"    is  nearly  effaced. 

As  to  the  magistrates'  power  in  matters  eccle- 
siastical, Massachusetts,  in  1648,  was  in  advance  of 

1  John  Wise,  26. 


76  MASSACHUSETTS   ECCLESIASTICAL   LAW. 

her  time.  The  Church  of  England,  by  the  Act 
of  Conformity,  in  1662,  requiring  subscription  to 
articles,  assent  and  consent  to  polity  as  well  as 
doctrines,  undid  the  work  of  the  Puritans,  and  went 
backward  to  Article  77  of  Magna  Charta,  which 
secured  freedom  only  to  the  "  Church  of  England." 
While  the  General  Court  of  Massachusetts,  by  their 
caution,  made  no  inroads  upon  the  doctrine  that  the 
Scriptures  are  the  test  of  pohty  as  well  as  faith ;  and, 
in  order  that  men's  belief  may  be  voluntary  and 
progressive,  the  local  churches  were  left  essentially 
independent.^ 

It  may  illustrate  the  confidence  of  the  Orthodox 
churches  in  the  Westminster  Confession  and 
Cambridge  Platform  to  notice,  that  while  the 
Unitarian  controversy  was  at  its  height  there  was 
no  call  for  a  synod  to  settle  a  new  polit}^,  or  state 
anew  the  doctrines  of  the  atonement,  the  trinity, 
regeneration,  inspiration,  then  so  much  disputed. 
Betaking  themselves  to  the  Word  of  God,  minis- 
ters instructed  the  people  as  well  as  they  could,  and 
threw    upon    them    the    responsibility   of  receiving 

1  Along  with  the  Westminster  Confession,  and  the  Tliirty-nino 
Articles  of  the  Church  of  England  concerning  doctrine,  the  Boston 
Confession  of  1680  was  unanimously  commended  as  the  public  expres- 
sion of  the  faith  of  the  churches  of  Connecticut,  assembled  at  Saybrook 
in  1708,  by  order  of  the  General  Court  of  Connecticut.  See  Dr.  Bacon, 
Norwich  Festival.  The  Cambridge  Platform  is  cited  by  the  Supreme 
Judicial  Court  in  the  following  cases :  Avery  v.  Tyringlinm,  3  Mass. 
165,  as  to  the  necessity  of  ecclesiastical  councils  for  removing  ministers, 
Ch.  10,  §  6 ;  Baker  v.  Fales,  16  Mass.  489,  as  to  tlie  identity  of  Clmrch 
and  Parish,  Ch.  3,  §  4,  and  Ch.  9,  §  4.  In  Gridley  v.  Clark,  2  Pick. 
403,  counsel  argue  the  necessity  of  installation,  from  Ch.  9,  §  7.  The 
works  of  John  Wise  are  cited  in  Baker  v.  Fales,  16  Mass.  499. 


MASSACHUSETTS  ECCLESIASTICAL  LAW.  7'( 

or  rejecting  the  truth.  Meeting  in  General 
Council  at  Boston  in  June,  1865,  the  elders  and 
messengers  of  the  Congregational  churches  of  the 
United  States  have  again  heartily  confirmed  for 
substance  of  doctrine  the  old  symbols  and  platforms 
of  the  fathers,  as  adequate  to  the  new  work  opened 
before  them  in  the  South  and  West.^ 

§  7.  The  Cambridge  Platform  is  styled  by  John 
Wise  the  Magna  Charta  of  the  Congregational 
churches ;  later,  the  Supreme  Judicial  Court  call  it 
their  constitution.  It  is  now  regarded  as  the  com- 
mon law,  some  parts  obsolete,  but  all  venerable, 
from  which  the  Congregational  churches  of  Massa- 
chusetts have  freely  drawn  in  constructing  their 
polity  ;  the  confessions  of  faith,  creeds,  covenants, 
and  church  manuals,  with  all  their  liberty  of  choice, 
showing  a  substantial  harmony  in  regard  to  doc- 
trines and  usages  among  the  Orthodox  churches 
of  Massachusetts  as  great  as  can  be  found  in 
other  denominations  of  Christians.  The  Saybrook 
Platform  has  been  pronounced  "  obsolete,"  and 
the  Cambridge  Platform  "  largely  obsolete  ; "  but 
suggestions  for  amendment  have  been  rare.  A 
sohtary  writer  in  the  Examiner  (41  :  446)  ad- 
vised the  calling  of  a  synod  for  that  purpose. 
Other  denominational  manuals  are  much  more 
freely  criticised  than  the  humble  platforms  of 
Cambridge  and  Saybrook.  The  Book  of  Discip- 
line of  the  Presbyterian  Church  is  said  by  the  Re- 
pertory, 1856,  583,  to  be   "  unintelligible,   inconsis- 

1  See  Appendix  H.    Cong.  Quar.  for  July,  1865.    New  Englander,  do. 


YS  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

tent,  and  in  some  of  its  parts  unreasonable."  The 
extreme  caution  heretofore  used  in  amending  the 
book  is  described  in  the  Repertory,  1859,  599. 
Episcopalians  complain  of  the  "  obscurity  and 
confusion "  of  their  canons,  and  of  theij  "  su- 
perabundant legislative  life."  Church  Rev.  ix. 
164 ;  xii.  644.  The  approved  changes  in  the 
Methodist  polity  since  1790  are  quite  numerous 
and  substantial,  and  other  radical  changes  are 
impending.     Meth.  Quar.  1860,  128  ;  1863,  475. 

The  principles  underlying  the  Congregational 
polity,  and  all  free  government  in  state  and  church, 
are  well  considered  in  John  Wise's  Vindication, 
1710.  More  recent  descriptive  definitions,  showing 
that  Congregationalism  is  a  polity  not  confined  to  a 
particular  system  of  doctrines,  whether  Baptist, 
Orthodox,  Unitarian,  or  Universafist,  may  be  found 
in  the  Dublin  Case,  38  New  Hampshire  Reports ; 
Examiner,  ixvii.  215 ;  Spectator,  iii.  364 ;  Examiner, 
viii.  85 ;  Bib.  Repository,  1839,  236 ;  New  Eng- 
lander,  1849,  111,  and  Bprague's  Annals,  Vol.  viii. 
Introd.  The  recent  works  of  Mr.  Punchard  and  Mr. 
Dexter  on  Congregationalism  are  very  full  discus- 
sions of  its  scriptural  and  historical  relations. 
While  Baptists  and  Orthodox  are  tenacious  of 
Congregationalism,  it  is  due  to  the  Uni  versa  lists 
to  state  that  the  Convention  of  1863,  disavowing 
any  further  connection  with  it,  have  adopted  a 
modified  Presbyterianism.  Quite  decided  steps  in 
the  same  direction  have  also  been  taken  by  the  Unit- 
arian Convention  held  at  New  York  in  April,  1865.^ 

*  Examiner,  May,  1S65.     Appendix  G. 


MASSACHUSETTS   ECCLESIASTICAL   LAW.  79 

The  comparative  power  of  Congregationalism  to 
preserve  the  faith  and  to  recover  lapsed  churches  is 
discussed,  Spectator,  iii.  386 ;  N.  Englander,  April, 
1846,  1853,  261 ;  Welman's  Church  Polity  of  Pil- 
grims, 134.  The  value  of  the  ancient  Protestant  con- 
fessions and  symbols  is  enforced  by  Professor  Shedd, 
Bib.  Sac.  xv.  661 ;  Church  Rev.  i.  360.  The  Ortho- 
dox church  creeds,  confessions,  and  covenants  of 
Massachusetts  are  many  of  them  traced  historically, 
Congregational  Quarterly,  iv.  179.  For  Essex 
County  church  creeds  and  confessions,  see  Essex 
North,  1865,  296-381.  For  the  Baptist  view  of 
creeds  and  confessions,  see  Christian  Rev.  xxii.  251, 
and  XXV.  130. 

The  full  creed  of  the  Universalists,  for  the  use  of 
ministers  and  people,  was  drawn  up  at  Winchester, 
New  Hampshire,  in  1803,  and  has  been  sanctioned 
by  the  General  Convention  of  1863  as  the  authorita- 
tive standard  of  Universalist  theology,  and  unalter- 
able.    It  is  in  the  following  words  :  — 

1.  We  believe  that  the  Holy  Scriptures  of  the 
Old  and  New  Testaments  contain  a  revelation  of 
the  character  of  God,  and  of  the  duty,  interest,  and 
final  destination  of  mankind. 

2.  We  believe  there  is  one  God,  whose  nature 
is  love,  revealed  in  one  Lord  Jesus  Christ  by  one 
Holy  Spirit  of  Grace ;  who  will  finally  restore  the 
whole  family  of  mankind  to  holiness  and  happiness. 

3.  We  believe  that  holiness  and  true  happiness 
are  inseparably  connected,  and  that  believers  ought 
to  maintain  order  and  practise  good  works ;  for 
these  things  are  good  and  profitable  unto  men. 


80  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

In  the  absence  of  approved  modern  Unitarian 
creeds  and  confessions,  we  can  only  refer  to  their 
more  ancient  symbols,  as  they  are  discussed  in  the 
periodicals.  The  creed  and  catechism  of  the  early 
Polish  Unitarians  are  described.  Examiner,  1.  202  ; 
Repertory,  ix.  180.  For  the  English  Connections  of 
Unitarianism,  see  Examiner,  xxxviii.  289,  and  xlii.  30, 
1865.  For  the  Heidelberg  Catechism,  see  Bib.  Sac. 
XX.  670.  For  the  Westminster  Assembly,  its  Con- 
fession and  Catechism,  Repertory,  1843,  561  ;  1849, 
59 ;  N.  Englander,  October,  1846  ;  Christian  Rev. 
viii.  570 ;  Meth.  Quar.  1848,  577  ;  Massachusetts 
General  Association  of  Ministers,  1843,  1844.  For 
the  Half- Way  Covenant  of  1662,  and  its  effects 
in  New  England  after  a  trial  of  a  hundred  and 
fifty  years,  Wisner's  Old  South,  57 ;  Essex  North, 
1865,  271;  N.  Englander,  1846;  Christian  Rev. 
xi.  64. 

It  may  be  weU  to  state,  in  this  connection,  some 
recent  decisions  in  regard  to  formularies,  articles,  and 
homilies  of  the  Church  of  England. 

1.  The  courts  are  simply  obliged  to  interpret 
them  ;  not  to  reconcile  them  with  the  Scriptures,  but 
with  each  other,  if  possible.  Burder  v.  Heath, 
6  Times  Rep.  562. 

2.  They  are  held  to  require  a  belief  of  justifi- 
cation by  faith.  Saunders  v.  Head,  2  Eccl.  Cases, 
145.  But  they  do  not  require  a  befief  of  the 
baptismal  regeneration  of  infants.  Gorham  v. 
Exeter,  13  and  14,  Jurist.  Nor  the  inspiration  by 
the  Holy  Spirit  of  all  parts  of  the  canonical  Scrip- 
tures ;  nor  the  eternal  punishment   of  the  wicked. 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  81 

Williams   v.   Salisbury,  Times  Rep.  ix.  787.     Ed. 
Rev.  Jan.  1865. 

§  8.  The  bearing  of  a  denomination  is  sometimes 
indicated  by  the  title-page  of  its  church  manuals. 
Our  Baptist  friends  have  an  easy,  common-law  as- 
pect :  "  The  Church  Member's  Manual  of  Ecclesi- 
astical Principles,  Doctrine,  and  Discipline,  present- 
ing a  Systematic  View  of  the  Structure,  Polity, 
Doctrine,  and  Discipline  of  Christian  Churches,  as 
taught  in  the  Scriptures."  Almost  military  pre- 
cision is  attained  by  our  Episcopal  friends  in 
their  "  Digest  of  the  Canons  for  the  Govern- 
ment of  the  Protestant  Episcopal  Church  in  the 
U.  S.  of  America."  There  is  abundant  instruction 
as  to  churches  and  their  members  contained  in  the 
various  manuals,  within  the  reach  of  every  one. 
Whoever  wishes  to  make  an  examination  of  the  re- 
sults of  ecclesiastical  councils,  in  order  to  learn  what 
is  the  every-day  working  of  the  polity  and  doctrines 
of  the  Congregational  churches,  will  be  aided  by 
the  following  references. 

1.  As  to  the  right  of  a  church  member  under  ad- 
monition, or  excommunicated,  to  ask  a  council,  mu- 
tual or  ex  parte^  see  Weymouth,  1637  ;  1  Savage's 
Winthrop,  338,  2d  ed. ;  Eastham  Council,  1723; 
Hopkinton,  1735  ;  Cong.  Quarterly,  Oct.  1863 ; 
Fitchbm-g,  1802 ;  Life  of  Dr.  Samuel  Worcester, 
Vol.  i. ;  Reading,  1847  ;  Westboro,  1859. 

2.  As  to  the  right  of  a  member  under  admonition 
or  suspension  to  vote  in  a  church  meeting  on  a  ques- 
tion not  relating  to  himself,  Exeter,  N.  H.,  council, 
1842,  of  which  Dr.  Braman  was  moderator.     One 


82  MASSACHUSETTS   ECCLESIASTICAL   LAW. 

hundred  years  before,  at  Exeter,  "  the  relative  and 
correlative  rights  of  ministers  and  people,"  were  ex- 
amined in  the  case  of  Mr.  Daniel  Rogers ;  and  it  was 
debated  "  whether  the  minister  and  the  church 
should  try  a  member,  or  the  member  try  the  church." 

3.  The  subject  of  unadvised,  hasty  excommuni- 
cations and  admonitions,  also  the  withholding  from 
members  letters  of  recommendation,  as  well  as  dis- 
mission, are  examined  in  Wisner's  Old  South,  1674, 
83;  and  in  Worcester,  1820;  Rehoboth,  1825; 
Wrentham,  1830;  Dr.  Waterman's  church.  Provi- 
dence, 1832  ;  Wareham,  1845  ;  Church  of  the  Puri- 
tans, New  York,  1857.  In  the  Bradford  council, 
1744,  the  first,  second,  and  third  steps  of  discipline 
are  examined.^ 

4.  That  a  member  is  dissatisfied  with  his  minister, 
is  no  cause  of  admonition.  See  Reading,  1847.  That 
he  asks  for  a  dismission  to  another  church,  "  on  the 
sole  ground  that  he  will  be  more  edified,"  Chebacco, 
1767 ;  Berkley,  1830  ;  New  Bedford,  April  14,  1863. 

5.  Creeds  and  doctrines  are  specially  examined  in 
the  Haverhill  Council  of  1760,  where  the  relative 
value  of  the  atonement,  as  a  whole  and  in  parts,  is 
looked  into.  In  the  Springfield  case,  1736  ;  Newbury 
1767,  Dorchester  1773,  Goshen  1818,  the  Orthodox 
faith  is  defended.  The  councils  held  at  Fitchburg 
1802,  Dorchester  1812,  Princeton  1817,  Deerfield 
1813,  Cambridge  1825,  and  Groton  1828,  have 
connections  with   the    Unitarian    views.^     A  more 

1  For  these  pamphlets,  see  Old  South  Library,  861,  1112  ;  Boston 
Athen£Eum  ;  Historical  Society's  Library  ;  Salem  Athenajum,  and 
Congregational  Library. 

^  The  proper  certificate  for  a  member  of  the  Presbyterian  Church  is 
examined,  West  v.  Rowland,  Presbyterian,  June  25,  1864. 


MASSACHUSETTS  ECCLESIASTICAL    LAW.  83 

learned,  but  not  more  hearty,  discussion  between 
Unitarians  and  Orthodox,  on  various  points  of 
difference,  may  be  found  in  the  periodicals.  On  the 
Unitarian  side   are  the   Anthology,  commencing  in 

1803,  the  General  Repository,  the  Christian  Disciple, 
and  the  Christian  Examiner ;  the  Examiner  com- 
mencing in  1824,  and  continued  to  the  present  time. 
On  the   Orthodox  side,  the  Panoplist,  beginning  in 

1804,  the  Monthly  and  Quarterly  Spectators,  the 
Spirit  of  the  Pilgrims,  and  the  New  Englander, 
continue  the  debate  to  our  day.  The  position  of 
both  parties,  after  fifty  years  of  discussion,  may 
be  seen  from  Dr.  Ellis'  Papers,  vols.  lix.  Ix.  Ixi.  of 
the  Examiner,  to  which  Dr.  Noah  Porter,  jr.,  replies 
in  the  New  Englander,  August,  1858.  See  also  Ex- 
aminer, Ixv.  374,  May,  865,  and  Methodist  Quar- 
terly, 1859,  386. 

6.  The  ancient  Presbyterial  method  of  proceed- 
ing with  a  church  in  the  third  or  admonitory  way 
of  communion,  according  to  the  Cambridge  Plat- 
form, chapter  15,  is  illustrated  in  the  Salem  Council, 
which  greatly  agitated  the  church  in  1733,  and 
several  years  after.  See  Salem  Council  pamphlet, 
also  Christian  Review,  vi.  252,  and  Wisner's  Old 
South,  104.  "  The  carriage  of  members  towards 
the  minister,"  "  and  giving  the  minister  affection- 
ate words,  but  no  salary,"  seem  to  have  been  in- 
gredients of  that  notable  discussion  in  Salem  First 
Church. 

Among  modern  topics  arising  in  that  venerable 
church  are  Mr.  Upham's  pamphlet  in  1832,  on  the  re- 
lations of  churches  and  members,  Examiner,  xiii.  69 


84  MASSACHUSETTS  ECCLESIASTICAL   LAW. 

and  Mr.  Felt's  pamphlet  in  1861 :  "  Had  the  First 
Church  a  Creed,"  in  reply  to  Judge  White. 

We  may  infer  what  swarms  of  complex  questions 
in  theology,  civil  and  ecclesiastical  government,  occu- 
pied our  ancestors  before  coming  to  New  England, 
by  turning  over  the  pages  of  Hanbury's  Memorial 
of  the  Independents,  in  three  closely  printed  volumes. 
Mr.  Felt's  Ecclesiastical  History  of  New  England, 
in  two  volumes,  shows  a  more  wholesome  and 
practical  range  of  topics.  The  churches  evidently 
had  profited  by  emigration,  wars,  and  discussions. 
Questions  in  theology  and  polity,  mainly  derived 
from  Scotland,  have  agitated  the  Presbyterians. 
Episcopalians  have  inherited  their  controversies  from 
the  English  Establishment ;  while  the  Congregation- 
alists  of  Massachusetts,  it  would  seem,  have  been 
occupied  with  some  of  the  controversies  of  the 
Eastern  Church  and  the  Latin  Church,  along  with 
those  of  the  Reformation,  all  conducted,  however, 
towards  the  practical  end  of  enabling  the  chm'ches 
to  do  their  share  of  the  Christian  work  of  the  world 
in  the  best  possible  manner. 


CHAPTER     YII. 

Ministers  —  Early  Laws  and  Usages  —  Their  Dignity,  Permanent  Settlement, 
Special  Contracts  —  Councils  for  Approbating,  Ordaining,  Dismissing  —  Mis- 
conduct and  Heresy  —  Act  and  Testimony  of  the  General  Assembly  of  the 
Presbyterian  Church  —  Control  of  the  Pulpit  —  Ministerial  Lands,  Funds  — 
Interdenominational  Topics  of  Discussion. 

§  1.  In  our  opening,  we  alluded  to  Secretary 
Washburn's  estimate  of  ministers,  placing  them  at 
the  head  of  his  list  of  persons  and  things  to  be  sent 
to  New  England  ;  before  "  wheat,  rye,  barley,  oats," 
or  "  pleasant  fruits."  Among  the  habits  of  the  Puri- 
tans, partly  ecclesiastical,  partly  religious,  few  have 
a  more  strange,  old-fashioned  look  to  us  than  their 
reverence  for  ministers.  The  devout  Puritan  we  un- 
derstand ;  the  fighting  Puritan,  too,  by  a  species  of 
instinct :  this  reverential  spirit  towards  the  ministry 
is  past  our  comprehension.  But  our  object  is  merely 
to  illustrate  from  the  laws  the  civil  and  political,  not 
the  domestic,  esteem  in  which  ministers  were  early 
held  in  Massachusetts,  and  trace  this  esteem  in  the 
decisions  of  the  Supreme  Judicial  Court,  avoiding 
needless  details. 

§  2.  Ministers  were  early  employed  as  ambassa- 
dors from  Massachusetts  to  England :  we  have  on 
record  the  modest  request  of  the  Great  and  General 
Court  to  the  church  in  Boston  and  the  church  in 
Dorchester  to  loan  their  ministers  for  this  purpose. 
This  ecclesiastical  usage  was  brought  from  Eng- 

8  (85) 


86  MASSACHUSETTS   ECCLESIASTICAL   LAW. 

land,  where  it  continued  to  be  the  habit  to  send 
bishops  on  embassies  as  late  as  the  Treaty  of 
Utrecht. 

Ecclesiastical  prime  ministers  were  no  novelty  in 
England.  The  Pilgrims  left  Williams,  Bishop  of 
Bristol,  holding  the  office  of  lord  high  chancellor 
from  1621  to  1625.  It  was  some  such  qualified 
lord  high  chancellorship,  held  by  Mr.  Cotton  and 
others,  that  made  it  perfectly  natural  for  the  General 
Court  to  invite  him,  together  with  some  other  min- 
isters, to  assist  some  of  the  magistrates  in  compiling 
a  body  of  fundamental  laws.  In  1636,  in  pursuance 
of  the  invitation,  they  presented  to  the  Court  a 
model  of  "  Moses,  his  Judicials,  compiled  in  an 
exact  method,"  which  were  taken  into  consideration; 
and,  in  1641,  these  models  were  digested  and  sub- 
mitted to  the  freemen,  and  became  for  a  time  the 
fundamental  laws  of  the  Commonwealth.  Easy 
matters,  as  well  as  hard,  seem  to  have  been  referred, 
in  the  first  instance,  to  the  ministers  and  elders  at 
Boston,  without  any  reference  to  the  Book  of 
Deuteronomy;  which  required  (Ch.  17,  v.  8,  9) 
only  the  hard  matters,  and  those  in  the  last  resort, 
to  be  carried  up  to  the  Priest  and  the  Levite  at 
Shiloh.  1 

§  3.     In  those  primitive  days,  we  may  be   sure 

^  The  general  adaptation  of  the  Law  of  Moses  to  Colonial  times  is 
vindicated,  21  Examiner,  1.  See  Repertory,  1848,  75.  The  relation 
of  the  Mosaic  to  modern  laws  is  discussed.  Biblical  Repository,  1843, 
186.  For  its  relation  to  foreigners,  see  13  Bib.  Sac.  564 ;  its  humane 
features,  10  Bib.  Sac.  340,  and  19  do.  368;  its  representative  system, 
15  Bib.  Sac.  825. 


MASSACHUSETTS    ECCLESIASTICAL   LAW.  8T 

that  offences  against  ministers  were  not  lightly 
overlooked.  If  any  one  "  broke  out  into  contempt- 
uous carriage"  towards  the  ministers,  he  was,  for 
the  first  offence,  openly  reproved  by  the  magistrates 
at  some  lecture ;  for  the  second  offence,  he  might 
be  compelled  to  stand  two  hours  on  a  block,  four 
feet  high,  on  a  lecture  day,  with  a  paper  fixed  on 
his  breast,  with  this  written  on  it,  "  A  wanton  gos- 
peller," in  capital  letters.^  Stephen  Greensmith,  for 
affirming  that  the  ministers,  except  Mr.  Cotton, 
preached  a  covenant  of  works,  was  put  into  the 
hands  of  the  marshal,  and  enjoined  to  make  ac- 
knowledgment to  every  congregation  to  their  satis- 
faction. Unlucky  women,  who  were  overheard  criti- 
cising, had  to  make  formal  acknowledgment  on  lec- 
ture day,  by  the  mouth  of  their  husbands  ;  though 
what  they  said  against  the  minister  might  be  no 
more  noxious  than  the  speeches  of  many  walking 
now-a-days  from  the  meeting-house  of  a  Sunday. 
Whoever,  in  the  early  times,  charged  a  minister 
with  a  grave  offence,  made  up  his  mind  to  leave  the 
Colony,  or  make  humble  acknowledgments.  Spe- 
cial alertness  was  employed  to  suppress  anything 
that  appeared  in  print  contrary  to  sound  doctrine  : 
many  an  acre  of  land  was  voted  to  distinguished  min- 
isters by  the  Great  and  General  Court  for  defending 
the  faith  against  Quakers  and  Baptists. 

Defamed  by  pamphleteers,  they  had  not  to  wait 
the  slow  investigation  of  ecclesiastical  councils  and 


1  2  Mass.  Rec.  179.     In  Connecticut,  the  height  of  the  stool  was 
four  feet  also.     9  Ch.  Rev.  524. 


88  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

periodicals  ;  but  the  General  Court,  as  late  as 
1743,  passed  orders  that  the  justices  see  to  their 
suppression.  The  pamphlets  are  very  exuberant  in 
their  defence  of  ministers.  "  These  young  men  of 
New  York,"  says  one,  "  flout  at  the  Rev.  Samuel 
Willard  ;  they  fling  at  an  awful  desk  ;  more  than 
that,  they  fleer  at  the  incomparable  Dr.  Owen,  and 
the  forever  famous  Dr.  Goodwin,  and  Mr.  Hooker." 

It  could  hardly  be  expected  that  this  high  pitch 
of  reverence  for  ministers  could  be  maintained  in 
Massachusetts  after  all  the  revolutions  in  habits 
of  the  last  hundred  years.  With  more  moderate 
views  of  prerogative,  we  shall  be  pleased  to  find  how 
much  of  the  reverential  feeling  took  refuge  in  the 
courts  of  justice.  We  have  no  occasion  to  be  dis- 
satisfied with  the  position  and  dignity  of  the  minis- 
ter, imphed  in  any  of  the  decisions  of  the  Supreme 
Judicial  Court.^ 

§  4.    We  have  seen  already  how  the  personal  ^om- 


1  "  The  incurridging  support  of  ministers  "  lay  at  the  root  of  national 
prosperity,  in  the  view  of  the  Confederate  Commissioners  for  the  United 
Colonies,  See  9  and  10  Plymouth  Records.  The  various  political, 
ci\il,  and  religious  ties  between  churches  and  well-ordered  common- 
wealths, may  be  best  traced  in  the  series  of  Election  Sermons,  delivered 
annually  before  the  Great  and  General  Court,  from  the  early  Colonial 
times.  Mr.  Thornton,  in  his  Pulpit  of  the  Revolution,  has  given  us 
some  specimens  of  far-seeing  patriotism,  taken  from  this  rich  collec- 
tion. In  the  Artillery  Election  discourses,  war,  in  all  its  relations 
and  aspects,  is  discussed.  In  the  Dudlcian  Lectures,  delivered  annually 
at  Caml)ridge,  since  1760,  may  be  found  many  a  vindication  of  Con- 
gregationalism, and  its  adaptation  to  free  states,  as  against  Episcopacy 
and  Catholicism.  See  Examiner,  poism,  2  Bib.  Sac.  451.  For  acts, 
deliverances,  and  testimony  of  the  Supreme  Judicatory  of  the  Presbyte- 
rian church,  see  Digest  of  Rev.  Samuel  I.  Baird,  published  in   1856^ 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  89 

fort  of  the  minister  was  cared  for,  by  providing  him 
a  parsonage  and  a  salary,  as  permanent  as  the  land 
and  the  people  could  make  it.  No  slight  elements 
of  dignity  these,  which  the  com'ts  have  taken  care 
to  support  by  their  decisions  in  regard  to  the  perma- 
nency of  a  minister's  settlement.  The  law  of  a 
minister's  settlement  is  laid  down  thus  by  Chief  Jus- 
tice Parsons  in  the  case. of  Avery  and  Tyringham.^ 
"  It  has  been  the  uniform  opinion  of  all  the  judges 
of  the  higher  Courts,  that  where  no  tenure  was  an- 
nexed to  the  office  of  a  minister  by  the  terms  of  set- 
tlement, he  did  not  hold  the  office  at  will^  but  for  life^ 
determinable  for  some  good  and  sufficient  cause,  or 
by  the  consent  of  both  parties."  The  clause  in  the 
Bill  of  Rights  of  1780,  allowing  the  town  "  at  all 
times  to  elect  its  minister,"  means,  "  at  all  such 
times  when  it  has  no  minister,"  said  the  Chief  Jus- 
tice. 

The  permanent  doctrine  had  various  and  earnest 
discussions  before  this  decision.  It  had  much  to  do  in 
hindering  Mr.  Norton's  removal  from  Ipswich  to 
Boston,  in  1654.  In  1719,  when  the  Boston  minis- 
ters approved  of  some  member  of  the  New  North 
"  driving  on  to  secure  the  Rev.  Mr.  Thacher,"  who 
was  then  well  settled  at  Weymouth,  the  aggrieved 
members  at  the  New  North  say,  "  the  best  people  in 
the  town  and  country  were  opposed  to  it,  as  not  hav- 
ing a  good  foundation  and  principle  for  the  bottom 

pp.  856.  For  a  great  variety  of  doctrinal  and  practical  instniction  for- 
tibly  expressed,  see  the  Annual  Pastoral  Letter  of  the  Massachusetts 
General  Association  of  Ministers,  since  1806. 

1  Avery  v.  Tyringhara,  3  Mass.  160.     S-  P.  5  Conn.  496,  1824. 
8* 


90  MASSACHUSETTS    ECCLESIASTICAL  LAW. 

of  it,  and  a  bad  precedent  for  all  other  churches." 
In  1773,  it  received  another  shock  by  the  action 
of  rivil  councils  in  the  case  of  Mr.  Goss  at  Bolton, 
and  the  dismission  of  ministers  of  tory  sentiments 
in  Worcester  County.  This  led  the  Rev.  Mr. 
Thacher,  of  Maiden,  to  insist  that  no  description  of 
men,  "  under  the  government  of  Jews,  Turks,  or  Pa- 
gans, were  so  badly  off  as  the  clergy  of  New  Eng- 
land, on  the  supposition  that  a  power  of  dismission 
lies  with  the  people."  ^ 

The  permanence  of  the  minister's  settlement,  thus 
strenuously  laid  down  by  the  Court  in  1807,  induced 
a  new  style  of  contract  between  the  minister  and 
people.  In  1820,  the  people  of  Easton  made  what 
Mr,  Justice  Morton  calls  a  "  novel  and  peculiar " 
contract  for  the  times,  with  their  minister,  the  Rev. 
Mr.  Sheldon.  It  was  this :  that  the  parish,  in  case 
two  thirds  of  the  members  were  dissatisfied,  might 
give  Mr.  Sheldon  one  year's  notice  to  quit,  and  then 
the  tie  might  be  dissolved  by  a  mutual  council. 
The  Court,  seeing  nothing  in  the  nature  of  the  rela- 
tion to  prevent  such  special  and  peculiar  agreements, 
held  the  parties  bound  by  them  in  this  instance ;  and 
many  others.  Sheldon  v.  Easton,  24  Pick.  286 ; 
Blackburn  v.  Walpole,  9  Pick.  97. 2 

'  Mr.  Thacher's  pamphlet,  in  1782,  and  the  spirited  reply  of  J.  S.,  in 
1785,  are  in  the  Salem  Athenaeum.  J.  S.,  written  by  Governor  Sulli- 
van, was  appai-ently  consulted  by  the  Court,  in  Avery  v.  Tyringham, 
and  Burr  v.  Sandwich.  The  reasons  fur  a  limited  term  of  settlement 
are  well  stated  in  6  Monthly  Spectator,  259,  1824.  •• 

^The  Antinomian  Controversy,  in  Mrs.  Hutchinson's  time,  tended  to 
unsettle  ministers  ;  later,  the  Arminian.  For  an  illustration  of  numer- 
ous changes  from  1793  to  1850,  amounting  to  sixteen,  in  the  case  of  an 


MASSACHUSETTS   ECCLESIASTICAL   LAW.  91 

§  5.  The  special  contracts  between  ministers  and 
people  in  Massachusetts  cannot  be  described  in  a 
short  compass.  The  Com-ts  continue  to  interpret 
them  with  a  view  to  promote  the  permanence  and 
dignity  of  the  settlement.  K  the  parties  have  not 
agreed  on  the  terms  of  dissolution,  the  Court  require 
the  preliminary  sanction  of  a  council,  thus  following 
the  Cambridge  Platform. 

Even  where,  by  the  contract,  the  parties  them- 
selves do  not  appear  to  regard  the  council  as  a  sine 
qua  non,  the  Court  have  insisted  upon  it  as  an  indis- 
pensable preliminary.  The  Rev.  Mr.  Cochran's 
contract  with  the  town  of  Camden,  in  1818,  ran 
thus :  "  Should  either  of  the  parties  unfortunately 
be  dissatisfied  with  the  other,  they  each  have  the 
right  (by  giving  six  months'  notice  of  a  wish  for 
dismission)  to  call  a  council,  whose  duty  it  shall  be, 
at  the  request  of  either  party,  to  dissolve  the  con- 
nection ;  unless  such  dissatisfaction  can  be  mutually 
accommodated."  Chief  Justice  Parker  insisted  that 
Mr.  Cochran  was  not  dismissed  for  two  years  after 
the  town  of  Camden  had  given  him  notice ;  because 
the  council  had  not  convened,  and  the  council  was 
a  sine  qua  non,  in  order  to  save  the  reputation  of 
both  parties  ;  and  the  salary  ran  until  the  council 
was  held,  and  dismissed  the  minister.^ 

excellent  Methodist  clergyman,  see  Meth.  Quar.  1861,  423.  For  ten- 
dencies towards  a  more  permanent  settlement  in  that  denomination,  see 
Meth.  Quar.  1860,  133. 

1  Cochran  v.  Camden,  15  Mass.  304.  The  exact  point  at  which 
salary  and  service  end  is  examined  in  the  Wareham  Case,  1845, 
where  mutual  notices  were  to  be  given.  A*:pendix,  Opinion  of 
Messrs.   Eddy  and  Coffin.      Also  in   the  Life  of  Bishop    Griswold, 


92  MASSACHUSETTS   ECCLESIASTICAL  LAW. 

§  6.  The  rule,  requiring  a  mutual  council  to  be 
plainly  and  distinctly  offered  in  cases  of  disagree- 
ment, was  carried  to  its  utmost  limit  in  1827, 
in  the  case  of  Mr.  Thompson,  who  claimed  his 
salary,  and  recovered  it,  of  the  town  of  Rehoboth. 
The  society  had  voted  his  dismission,  and  turned 
him  out  of  the  meeting-house,  after  an  ex  parte 
council  had  met  and  recommended  his  dismission.  ^ 


where  there  was  a  steady  reduction  of  the  salary  of  Dr.  Jarvis,  in 
connection  with  St.  Paul's,  Boston,  1828.  In  Murdock  v.  Phillips 
Academy,  12  Pick.  244,  1831,  the  effect  of  an  appeal  upon  the  sal- 
ary of  a  professor  is  discussed.  For  early  discussions  as  to  minis- 
terial support,  see  Rev.  Mr.  Tufts'  pamphlet,  1725,  Athenreum,  c. 
52  ;  also  strictures  of  J.  S.  on  Rev.  Peter  Thacher,  1785.  Dr.  Shep- 
herd's Report  to  the  Council  of  1865  is  an  exposition  of  the  present 
attitude  of  the  subject.  How  the  Rev.  Dr.  Adams,  of  New  Hamp- 
shire, regarded  a  neglect  to  pay  his  salary,  may  be  seen  in  Belknap's 
History,  Vol.  iii.  350,  cited  in  the  Semi-Centennial  of  Dr.  Storrs,  page 
56.  In  the  Reformed  Dutch  Church,  it  has  been  held  that  if  a  minister 
is  regularly  suspended  from  his  ministry,  by  the  Classis,  for  drunken- 
ness, on  the  application  of  the  consistory  of  his  church,  his  salary 
ceases  on  the  day  of  the  decision  by  the  Classis,  though  he  may  after- 
wards unsuccessfully  appeal  to  the  particular  synod  and  the  general 
synod.  Reformed  Dutch  Church  of  Albany  v.  Bradford,  8  Cowcn, 
457,  1826.  A  minister  of  the  Methodist  Episcopal  Church  is  not 
allowed  by  the  discipline  to  sue  for  his  salary. 

1  The  ex  parte  council  of  our  day  has  succeeded  to  the  supervisory 
work  laid  down  in  the  Cambridge  Platform  for  ruling  ciders,  synods, 
pres1)yteries,  civil  magistrates,  and  churches  "  in  tbe  tbird  way  of  com- 
munion." How  reluctantly  the  ex  parte  council  was  admitted  as  such 
substitute  appears  in  the  Hopkinton  Council,  1735.  "  It  is  not  agree- 
able to  the  Congregational  constitution."  It  is  allowed,  "  considering 
the  lamentable  degeneracy  concerning  consociation  and  communion  of 
churches  "  in  the  third  way,as  declared  in  the  "renowned  synods  ;  " 
as  also  the  "  great  opposition  made  to  the  practice  of  those  principles." 
Cong.  Quarterly,  Octi  1863,  346.  Dr.  Samuel  Worcester  apjjcars  to 
have  had  misgivings,  in  1802,  in  regard  to  ex  parte  councils,  which  he 
afterwards  overcame.  Before  the  Cambridge  Platform  of  1648,  the 
ex  parte  council  was  in  use. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  93 

He  had  been  invited  to  attend  this  ex  parte  council ; 
he  had  also  a  copy  of  the  charges  against  himself. 
The  only  reason  that  prevented  his  society  fronn 
offering  him  a  mutual  council,  in  the  first 
instance,  was  that  he  had  given  out  in  writing 
beforehand  that  he  would  have  nothing  to  do 
with  councils.  So  very  Uteral  an  enforcement 
of  the  rule  that  the  contract  is  for  life,  and  can 
be  dissolved  only  by  consent  or  by  a  mutual 
council,  did  not  please  the  cathoUc  congregation  of 
Rehoboth.  They  continued  to  shut  Mr.  Thompson 
out  of  the  meeting-house,  and  refuse  him  his  salary. 
At  the  same  time,  they  employed  a  blind  diligence 
to  rid  themselves  of  him,  which,  owing  to  other 
irregularities,  did  not  succeed.  How  long  the  con- 
test lasted,  we  cannot  say.  Mr.  Thompson  went 
out  of  court  with  his  salary  a  second  time.  He 
is  described  by  Chief  Justice  Parker,  with  extra- 
judicial warmth,  as  an  instance  of  that  infatuated 
class  of  ministers  who  insist  upon  their  strict  legal 
"  rights  again  and  again,  after  a  settled  hostility  has 
existed  for  years  ;  who  continue  to  preach  to  a  few 
people,  to  entitle  themselves  to  recover  their  salary 
rather  than  with  any  expectation  of  doing  any  good ; 
council  after  council  having  given  their  solemn  ad- 
vice in  favor  of  a  dissolution,  though  technically  in- 
formal." ^  The  law  of  settlement  now  is  the  same 
that  it  was  in  1827 :  the  difficulty  of  dismissing  a 

1  Thompson  v.  Eelioboth,  7  Pick.  163.  The  Rehoboth  Council, 
1825,  at  large,  may  be  found  in  Old  South  Library,  1112.  The 
charges  made  are  "  lording  it  over  the  heritage,"  and  "  general  se- 
verity." 


94  MASSACHUSETTS   ECCLESIASTICAL   LAW. 

minister,  who  is  unwilling  to  go,  with  or  without 
a  mutual  council,  is  not  diminished. 

The  questions  at  issue  in  these  cases  are  not 
criminal  but  mixed  questions,  partly  theological, 
partly  in  regard  to  ministerial  discretion  and  conduct. 
That  the  people  know  how  to  express  their  disap- 
probation at  the  introduction  of  certain  topics,  will 
be  seen  more  readily  from  council  pamphlets  than 
from  stately  histories  and  biogi'aphies. 

For  discussions  incident  to  the  Newlight  preach- 
ing, see  Middleboro'  Council  of  1745  ;  ^  for  Masonry, 
see  Wrentham,  1830 ;  New  Measures,  Wareham, 
1845 ;  2  Slavery  and  Temperance,  HoUis  Street,  Bos- 
ton, 1840  ;  Exeter,  N.  H.,  1842  ;  Church  of  the  Puri- 
tans, N.  Y.,  1857.3 

1  The  Great  Awakening  in  New  England,  under  the  preaching  of 
Edwards,  Whitefield,  and  others,  is  discussed  by  the  Unitarians,  43  Ex- 
aminer, 374,  and  44,  367  ;  by  the  Presbyterians,  in  connection  with  the 
Moderates  and  Seceders  of  Scotland  and  Ireland,  Repertory,  1835, 
217,  and  1844,  410.  The  New  Englander  for  May,  1853,  gives  some 
of  the  ecclesiastical  effects  of  the  xVwakening  in  Connecticut.  For  the 
ge.'ieral  effect  on  theology,  see  Bib.  Sac.  July,  1865.  That  Harvard 
and  Yale  were  both  opposed  to  Whitefield,  see  Bib.  Rep.  1841,  177, 
374,  and  1842,  187. 

^  The  Repertory  for  1835  is  very  full  on  the  new  measures.  The 
Bib.  Sac.  1859,  279,  maintains  that  certain  aspects  of  doctrine  have  been 
advanced  by  each  extensive  revival  of  religion.  May  it  not  also  be 
true  that  international  revivals  are  intended  to  prepare  the  churches  for 
dark  times.  The  great  awakening  of  1740  preceding  a  long  series  of 
wars,  and  the  revivals  of  1858,  would  favor  the  theory.  Authentic 
materials  on  revivals  may  be  found  in  the  reports  of  the  Massachu- 
setts Ministerial  Association  since  1806.  Revivals  occurring  in  Lent 
are  witnesses  to  Apostolic  Christianity,  says  the  Church  Review,  12, 
599.  Years  remarkable  in  Massachusetts  for  revivals,  are  IC80,  1727, 
40,  55,  90  ;  1800,  11,  23,  30,  43,  58. 

2  For  formidable  ecclesiastical  explosions  produced  by  slavery,  see 
Methodist  Quarterly,  1849,  282,  and  1851,  396.     Christian  Review,  x. 


MASSACHUSETTS   ECCLESIASTICAL   LAW.  95 

Various  are  the  charges  examined  in  the  council 
pamphlets  against  ministers,  having  grounds  per- 
sonal, political,  and  domestic,  apart  from  doctrine 
and  measures.  Their  lessons  for  the  heedless,  the 
hard,  the  sensitive,  and  especially  the  talebearer, 
may  be  studied  to  advantage  by  those  who  are  nei- 
ther clergymen  nor  sons  of  clergymen.^ 

§  7.  A  minister,  obliged  to  vindicate  his  character 
from  slanderous  charges,  will  find  that  the  Court  en- 
tertain a  high  sense  of  the  dignity  and  proprieties 
of  the  ministerial  office.  One  Briggs  was  sued  by  the 
Rev.  Calvin  Chaddock  for'  uttering  the  following 
opprobrious  words :  "  He  (meaning  the  Rev.  Mr. 
Chaddock)  went  out  a  getting  hay,  and  he  got  so 
drunk  he  could  not  get  home."  Briggs's  counsel,  tak- 
ing advantage  of  the  spirit  of  the  age,  insisted  that 
the  words  were  not  actionable  per  se.  Spoken  of  a 
clergyman  of  the  established  Church  of  England, 
whose  estate  was  higher,  and  who  had  prospects 
of  preferment,  the  words  might  be  actionable ;  but 
not  so  when  spoken  of  a  Congregational  minister, 
who  cannot  be  said  to  have  any  tenure  of  office. 
Besides,  the  words,  "  he  got  so  drunk,"  indicate  not 


479,  xi.  114,  XV.  271.   Princeton  Repertory,  1847,  427;  1849,  39,  582  ; 
1858,  556;  1861,  322,  547,  758;  1862,  499;  1863,  496. 

1  Brimfield,  1801  ;  Ipswich,  1805;  Hingham,  1807;  Dr.  Allen  Pitts- 
field,  1807  ;  Manchester,  1822.  A  very  minute  supervision  of  ministers 
is  cultivated  by  the  Methodist  discipline.  In  the  Universalist  Convention 
of  1 863,  something  in  this  direction  is  recommended.  In  the  Established 
Church  of  England,  mere  drunkenness  and  incontinence  have  a  fatal 
monopoly  of  the  cases  reported.  Burden  v.  Spear,  1  Eccl.  Cases,  39  ; 
Fernall  v.  Craig,  5  do.  557  ;  Bonwell  v.  Bp.  London,  4  Times  Rep. 
815. 


96  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

a  habit,  but  a  single  act  of  frailty,  not  inconsistent 
with  the  general  good  character  and  virtuous  habits 
of  a  minister.  Chief  Justice  Parker  showed  that 
the  audacity  of  the  bar  made  no  impression  on  the 
bench.  He  ruled  that  the  office  of  minister  in  Mas- 
sachusetts requires  a  pure,  and  even  unsuspected, 
moral  character  ;  that  a  charge  of  the  kind  would  cer- 
tainly expose  a  minister  to  dismission  from  his  peo- 
ple ;  that  the  words  were  highly  actionable,  and  need- 
ed no  colloquium  or  allegation  that  they  were  spoken 
of  the  reverend  plaintiff  in  his  ministerial  character  ; 
that  the  law  will  not  imply  that  a  minister  in  Mas- 
sachusetts may  be  intoxicated  when  not  in  the  dis- 
charge of  his  ministerial  functions  ;  for  it  holds  him 
at  all  times  to  be  under  the  control  and  the  obli- 
gations of  the  religion  which  he  professes  to 
teach.^ 

§  8.  As  to  the  licensing  or  approbating  of  candi- 
dates for  the  ministry,  it  has  of  late  devolved  on 
ministerial  associations,  under  a  protest,  however, 
that  the  right  was  originally  in  the  churches  them- 
selves.2 

In  the  matter  of  ordaining  ministers,  our  Massa- 
chusetts statutes  recognize  the  validity  of  ordination 
by  all  Christian  denominations  ;  following  the  act  of 

1  Chaddock  v.  Briggs,  13  Mass.  248. 

2  John  Wise's  Vindication,  xvii.  39,  40,  Woburn  Petition,  1653. 
Cumming's  E(;clesiastical  Dictionary,  Approbation,  License.  For  the 
history  of  ministerial  associations,  sec  Congregational  Quarterly,  April, 
1860,  and  July,  1864.  Rev.  Thos.  Gray,  of  Jamaica  Plain,  a  student 
of  Dr.  Stillman,  in  1793,  was  the  first  minister  approbated  by  the  Bos- 
ton Association.  43  Examiner,  251 .  In  the  Essex  North,  Nath.  Howe, 
1787. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  9T 

13  Elizabeth,  ch.  12th,  which  recognizes  the  valid- 
ity of  "  other  forms  of  institution,  consecration,  or 
ordering,"  than  the  Episcopal.  In  the  Episcopal 
churches  of  the  United  States,  the  Act  of  Uniformity, 

14  Charles  II.  1662,  ch.  4,  §  13,  is  followed,  requir- 
ing "  Episcopal  ordination."  ^  In  the  Congregation- 
al churches,  the  ordaining  of  ministers  belongs  by 
usage  to  ecclesiastical  councils,  though  it  has  been 
exercised  in  some  instances  by  ministerial  associa- 
tions, under  protest,  however. 

The  questions  propounded  to  candidates  by  eccle- 
siastical councils  might  almost  be  inferred,  if  the 
date  of  the  council  were  given.  At  Eastham,  in 
1723,  the  first  and  easiest  of  the  ten  questions  to  be 
answered  extempore  by  the  Rev.  Mr.  Osborn,  was 
the  following :  "  How  came  we  to  be  involved  in 
Adam's  guilt,  seeing  we  never  chose  him  for  our 
head?  "2 

§  9.  Thus  far,  on  the  side  of  the  Court,  we  have 
noticed  a  regard  for  the  permanence  and  dignity  of 
the  ministry  in  all  respects,  inducing  a  cautious 
refusal  to  pronounce  their  contracts  broken  until  a 
body  more  competent  than  themselves  to  examine 

1-  The  memorial  movement  of  1853  seems  to  have  been  an  effort  to- 
ward amending  the  inAndious  act  of  14  Charles  II.  Church  Review, 
11,  288.  Repertory,  1854,  390.  Also  the  spirited  protest  of  Dr.  Tjng 
and  other  clergymen  of  New  York,  to  Bishop  Potter's  pastoral  letter, 
June,  1865. 

'■^  Eastham  Council,  Old  South  Library,  861.  The  Bishop  of  Exeter, 
in  1847,  subjected  Mr.  Gorham,  who  had  been  thirty-six  years  in  the 
ministry,  to  an  examination  of  thirteen  days,  to  ascertain  his  views  on 
the  baptismal  regeneration  of  infants.  A  hundred  and  forty-nine  ques- 
tions were  required  to  be  answered. 
9 


98  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

these  mixed  questions  had  first  passed  upon  them ; 
refusing,  in  one  instance,  to  enforce  the  result  of  a 
council  when  the  grounds  of  the  result  were  not 
deemed  by  the  Court  substantial.  In  1832,  they 
refused  to  set  aside  the  contract  of  Mr.  Sheldon 
with  the  parish  of  Easton,  because  he  had  not 
replied  to  communications  from  committees  of  the 
parish,  and  had  refused  to  make  exchanges  with 
certain  ministers  of  the  neighborhood. ' 

There  are  grounds,  however,  for  which  a  minister 
may  be  dismissed  without  the  ceremony  of  calling 
an  ecclesiastical  council.  Should  he  appear  in 
court  claiming  his  salary,  after  being  dismissed  on 
such  grounds,  the  Court  will  not  send  the  parties 
away  to  a  council,  but  will  administer  what  justice 
it  can,  with  the  aid  of  the  jury. 

As  laid  down  by  Mr.  Justice  Morton,  they  are 
two  in  number.  First,  a  gross  and  wilful  neglect 
of  his  obvious  and  essential  duties  ;  second,  grossly 
immoral  or  criminal  conduct.  As  to  a  third  class 
of  ministerial  offences,  —  to  wit,  a  substantial  and 
essential    change   in    doctrine,    amounting    to    the 

1  The  question  of  a  minister's  right  to  control  the  exchange  of  pulpits 
with  his  brother  ministers  was  agitated  some  years  before  it  received 
judicial  sanction,  in  Sheldon  v.  Easton  ;  indeed,  it  was  an  important 
item  in  most  of  the  Unitarian  contests.  It  is  alluded  to  as  a  charge 
against  Mr.  Burr,  at  Sandwich.  In  the  case  of  Dr.  Codman,  of  Dor- 
chester, three  councils  were  called  to  settle  the  question  in  1812. 
Panoplist,  June  and  July,  1814;  59  Examiner,  203.  The  parish  of 
Cambridge  were  willing  to  control  the  exchanges,  hymn  books,  and 
evening  meetings  of  Dr.  Holmes,  their  pastor,  in  1827.  2  Spirit 
of  rilgrims,  5.59.  In  the  Groton  Council,  1828,  this  subject  was 
agitated.  In  1845,  38  Examiner,  271,  the  control  of  exchanges 
appears  to  be  conceded  to  the  responsible  minister  of  the  parish. 


MASSACHUSETTS   ECCLESIASTICAL  LAW.  99 

adoption  of  a  new  system  of  divinity,  —  they  can 
only  come  before  the  Court  through  the  result  of  an 
ecclesiastical  council.^  . 

In  the  law  courts  of  Massachusetts,  there  appear 
to  be  no  trials  involving  charges  of  heresy.  With- 
out invading  the  privacy  of  theologians,  we  will 
mention  two  prominent  cases  in  the  Presbyterian 
church,  where  grave  departures  from  theological 
standards  were  publicly  discussed. 

The  Rev.  Albert  Barnes,  of  Philadelphia,  in  1836, 
was  acquitted  by  a  vote  of  134  to  94,  by  the 
General  Assembly  of  the  Presbyterian  Church,  then 
held  at  Pittsburg,  on  charges  that  he  had  denied 
a  limited  atonement,  physical  depravity,  and  the 
imputation  of  Adam's  sin.  On  previous  trials  before 
an  inferior  church  court,  Mr.  Barnes  had  been  sus- 
pended from  the  ministry  on  the  strength  of  these 
charges.  About  the  same  time,  the  Rev.  Lyman 
Beecher,  D.  D.,  was  tried  by  the  Synod  of  Cincin- 
nati on  charges  of  the  same  description,  and 
acquitted.^     These  proceedings  were   accompanied 

1  Sheldon  v.  Easton,  24  Pick.  281,  1836.  A  parish,  however,  cannot 
set  up  any  one  of  these  three  grounds  of  defence,  when  sued  by  a  minister 
for  his  salary,  unless  it  was  stated  as  a  ground  for  his  dismission.  Whit- 
man V.  Cong.  Socy.  2  Gray,  306.  In  New  York,  the  decision  of  a 
council,  or  other  ecclesiastical  court,  seems  to  be  a  necessary  pre- 
liminary in  all  cases,  however  flagrant.  Reformed  Dutch  Church 
V.  Bradford,  8  Cowen,  457,  1825.  The  Master  of  the  Rolls  recog- 
nizes the  distinction  of  "  vices  tolerable  in  a  minister,  and  intolerable." 
D'Augars  v.  Rivaz,  3  Times  Rep.  110;  following  the  principle  of 
Sheldon  v.  Easton. 

2  What  makes  a  heretic,  see  23  New  Englander,  324.  What  a 
schismatic,  D'Augars  v.  Rivaz,  3  Times  Rep.  110;  Dr.  Beecher's 
Case,   Repertory,    1837,     216,    364;    Examiner,  xix.    116;    Life   of 


100  MASSACHUSETTS  ECCLESIASTICAL    LAW. 

by  the  act  and  testimony  of  a  convention  of  Presby- 
terian ministers  and  elders  held  at  Philadelphia, 
condemning  sixteen  erroneous  propositions  supposed 
to  be  held  by  Congregationalists  of  New  England 
generally,  ijut  more  especially  by  synods  of  the 
Presbyterian  Church  in  Western  New  York  and 
Ohio,  which  were  originally  established  by  emi- 
grants from  New  England,  under  certain,  com- 
promises as  to  church  polity  made  between  the 
General  Association  of  Connecticut,  in  1801,  and 
the  General  Assembly  of  the  Presbyterian  Church. 
At  an  early  day  it  had  been  said  of  Connecticut, 
"  the  people  are  strict  Congregationalists,  a  few- 
more  large  Congregationalists,  and  some  moderate 
Presbyterians."  ^ 

Without  notice  or  trial  of  any  kind,  these  Western 
synods,  comprising  sixty  thousand  church  members 
and  upwards  of  five  hundred  ministers,  were  summa- 
rily exscinded  by  the  General  Assembly  of  the  Pres- 
byterian Church  in  the  year  1837 ;  and  the  exscinding 
acts  were  soon  followed  by  legal  proceedings  in  the 
Supreme  Court  of  Pennsylvania,  which  divided  the 
Presbyterian  denomination  into  two  parts  —  the  Old 
and  the  New  School ;  the  Old  School  retaining  the 
name  and  property  of  the  denomination,  on  the  ground 
that  they  had  adhered  to  the  original  organization. ^ 

Dr.  B. ;  Mr.  Barnes'  Case,  Repertory,  1836,  447  ;  Spectator,  iii.  292  ; 
Examiner,  xxi.  187  ;  Dexter's  Congregationalism,  288. 

1  Palfrey,  iii.  428.  The  General  Association  of  Massachusetts,  as 
well  as  Connecticut,  for  many  years  acted  under  this  compromise  of 
1 801 .  As  early  as  1 74.'>,  overtures  were  made  to  the  Mass.  Convention 
of  Ministers,  by  the  Treshyterians. 

2  Com.  V.  Green,  4  Whar.  .Wl. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  101 

The  Act  and  Testimony  of  1836  has  a  precedent  in 
the  Scotch  Act,  Declaration,  and  Testimony  of  1736, 
by  which  the  mother  church  was  divided  into  more 
than  two  parts.^  In  their  reasoning  in  regard  to  the 
denominational  compromise  of  1801,  the  exscinding 
divines  seem  to  have  been  carefully  followed  by  the 
politicians  who  had  charge  of  the  repeal  of  the  Mis- 
souri Compromise  in  the  year  1854.  After  thirty 
years  of  trial,  divines  and  politicians  discover  that 
there  were  flaws  in  the  original  acts  of  compromise, 
both  the  ecclesiastical  and  the  political. 

In  the  year  1863,  the  ingredients  that  entered  into 
the  exscinding  act  of  1836  are  stated  by  an  Old 
School  Presbyterian  to  have  been  thus  various  and 
compounded :  "  They  were  partly  diversity  of  prin- 
ciple on  matters  of  doctrine,  and  partly  diversity  of 
principle  and  practice  on  matters  of  ecclesiastical 
organization  ;  partly  difference  of  views  as  to  the 
import  of  the  formula  of  subscription  to  the  con- 
fession of  faith ;  partly  conflicting  views  as  to  the 
best  method  of  conducting  missionary  and  other 
benevolent  operations ;  and  partly,  no  doubt,  alien- 
ation of  feeling  on  the  part  of  leading  men  on  both 
sides."  2 

As  to  errors  in  doctrine  set  forth  by  the  Act  and 
Testimony  of  1836,  and  re-stated  in  1863,  as  the 
foremost  among  the  grounds  of  excision,  it  has 
always  been  denied  that  they  were  prevalent  in  the 

1  Repertory,  1835,  201.  For  the  minutiae  of  the  Exscinding  Act,  see 
Repertory,  1837,  407;  1840,92;  Moore's  Digest,  ch.  8;  Spectator,  viL 
152;  ix.  597  ;  x.  338;  Bib.  Repository,  1838,  219. 

2  Repertory,  1863,  454  ;  1846,  593. 

9* 


102  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

exscinded  Presbyterian  churches.  Whether  prevalent 
or  not,  discussions  as  to  Adam's  sin,  imputation,  and 
other  cognate  doctrines,  intended  for  the  education 
of  the  race,  proceed  among  theologians  without 
reference  to  acts  and  testimonies  of  1736  or  1836.^ 
Meanwhile,  Congregationalists  of  Massachusetts 
take  notice,  from  their  experience  in  compromises, 
that  their  own  simple  polity  is  more  valuable  than 
they  themselves  had  ever  supposed  it  to  be.  And 
they  further  take  notice,  that  its  salutary  influences 
for  religion  and  liberty  are  best  promoted  when 
Congregational  churches  are  not  too  closely  allied 
with  the  State  or  with  Presbyterianism.^ 

§  10.  In  general,  it  may  be  said  that  the  interval 
from  1800  to  1836  is  not  rich  in  defences  of  the 
Congregational  polity.  Not  until  1843  did  the  Gen- 
eral Association  of  Massachusetts  Ministers  utter 
encomiums  on  their  polity.  See  Minutes,  1843  and 
1844.     New  England  ministers,  as  a  body,  made  no 

1  Various  points  of  the  Old  and  New  School  Controversy  were  dis- 
cussed in  acts  of  synods  and  presbyteries  prior  to  1825.  Then  came 
the  arguments  of  Dr.  Taylor  and  Dr.  Tyler,  in  the  Christian  Specta- 
tor. The  discussions  between  Professors  Hodge  and  Park,  involving 
all  doctrinal  points  of  difference  between  the  Presbyterian  and  New 
England  theologians  since  the  great  awakening  in  1740,  may  be  found 
in  the  Princeton  Repertory  and  Bibliotheca  Sacra,  1850,  1,2;  for  an 
abstract,  see  Examiner,  lii.  309. 

2  To  what  extent  Presbyterians,  and  other  denominations,  have  been 
built  up  by  Congregationalists,  see  3  Spectator,  390;  New  Eng- 
lander,  Nov.  1855;  4  Cong.  Quarterly,  39.  Since  1852,  various 
spiritual  solicitudes'  in  regard  to  New  England  theology,  are  indi- 
cated by  the  following  papers:  Tyler  v.  Harvey,  Kep.  1855,  712; 
Wallace  and  Dana  v.  New  School,  Kep.  1857,  159  ;  In  re  Beccher  and 
als.  Kep.  1857,  572;  In  re  Hartford  Ordination,  Rep.  1861,  570; 
Church  Review,  v.  .349  ;    xiii.  48. 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  103 

resistance  to  the  process  of  merging  *Congregation- 
alism  into  Presbyterianism,  which  was  silently 
going  on  under  the  auspices^  of  the  General  Associa- 
tions of  Connecticut  and  Massachusetts.  The  ill 
feeling  attending  the  excision  of  1837  was  insensi- 
bly communicated  to  all  denominational  controver- 
sies. Claims  made  by  Baptists,  Methodists,  and 
Episcopalians  to  apostolic  succession,  and  other 
private  advantages  in  doctrine  and  polity,  were 
treated  with  more  than  usual  harshness.  But  for 
the  last  twenty  years  it  may  be  said,  that  all  inter- 
denominational disputes,  unlike  the  international, 
have  decreased  in  number  and  severity.  We  are 
indebted  to  the  Bib.  Sac.  since  1861,  for  state- 
ments of  the  doctrines  held  hy  Baptists,  Method- 
ists, Episcopalians,  Presbyterians  of  the  Old  and 
New  School,  and  Congregationalists.  Those  state- 
ments, made  by  each  denomination  in  its  own  be- 
half, silow  how  general  is  the  agreement  among 
learned  divines ;  also  how  very  great  is  their  dili- 
gence to  reconcile  Divine  sovereignty  and  man's  free 
agency. 

Those  who  are  in  search  of  materials  for  future 
interdenominational  conflicts  will  be  aided  by  the 
following  outline  map  of  some  of  the  battle  grounds, 
since  A.  D.  1800,  where  ammunition  may  be  dug  up 
with  little  labor  or  expense  for  many  years  to  come. 

1.  In  a  contest  with  Episcopalians,  resort  may 
be  had  to  the  Church  Review,  commencing  in  1848, 
for  the  later  vulnerable  points  in  that  respected  de- 
nomination of  Christians.  For  earlier  matter,  the 
pious  combatant  will  go  to  the  Monthly  Christian 


104  MASSACHUSETTS    ECCLESIASTICAL   LAW. 

Spectator  for  1824,  36,  82,  140,  where  Bishop  Ho- 
bart's  Strictures  on  the  Bible  Society  are  examined. 
For  his  Strictures  on  Ministerial  Associations,  see 
Dr.  Turner's  Autobiography,  ch.  7.  In  the  Specta- 
tor of  1828,  will  be  found  a  review  of  his  sermon  at 
the  consecration  of  Bishop  Onderdonk  of  New  York. 
The  Quarterly  Spectator,  vol.  vi.  1834,  contains  an 
examination  of  the  claims  made  by  Bishop  Onder- 
donk of  Pennsylvania,  in  behalf  of  bishops  as  suc- 
cessors of  the  apostles.  Vol.  vii.  and  the  Princeton 
Repertory  for  1835,  239,  574,  treat  the  same  subject. 
Also  Repertory,  1843,  386,  and  25  Examiner,  190. 
The  Apostleship  a  Temporary  Office,  Repertory, 
1849,  355,  393,  542;  1856,  1.  A  scrutiny,  more 
denominational,  was  called  out  by  Rev.  Calvin 
Colton's  book.  See  8  Spectator ;  1  Christian  Review, 
552 ;  and  11  Repertory,  390.  Mr.  Noel's  retirement 
from  the  Church  of  England  is  noticed,  New  Eng- 
lander,  1849.  The  Church  Review  Strictures  are  dis- 
cussed, New  Englander,  1853.  The  Oxford  Tracts, 
the  Fathers,  and  their  value,  are  discussed  from  1835 
onwards.  Repertory,  1837,  84;  1841,  311,  450; 
1846,  137.  Potts  V.  Wainwright,  Methodist  Quar- 
terly, 1845,  153.  Huntington  v.  Sturtevant,  Boston 
Evening  Traveller,  June,  1865. 

2.  As  to  the  Methodist  polity,  strictures  upon  it 
are  rare  in  the  Episcopal  reviews.  None  are  to  be 
found  in  the  seventy-five  volumes  of  the  Christian 
Examiner.  The  most  vigorous  is  in  the  Christian 
Spectator,  1828,  509;  1830,  483.  Christian  Re- 
view, vi.  45,  and  vii.  409.  That  there  are  increas- 
ing coincidences  between  moderate  Calvinists  and 


MASSACHUSETTS   ECCLESIASTICAL  LAW.  105 

Arminians,  as  to  the  Fall,  see  Meth.  Quar.  1861,  647. 
As  to  the  atonement,  1860,  390  ;  as  to  the  origin  of 
of  evil,  1860,  662.  A  coincidence  with  other  de- 
nominations is  extending  in  regard  to  the  class  meet- 
ing and  its  uses,  1862, 599 ;  the  camp  meeting,  1861, 
582 ;  psalmody,  1861,  491 ;  Bib.  Sac.  vols.  xvi.  xvii. ; 
lay  representation  and  itineracy,  Meth.  Quar.  1863, 
475. 

3.  Should  it  become  necessary,  before  the  millen- 
nium, to  reexamine  the  word  Baptizo,  Professor  Stu- 
art in  the  Biblical  Repository,  1833,  and  Dr.  Edward 
Beecher,  1840  to  1843,  should  be  consulted,  with  a 
constant  refierence,  however,  to  the  Christian  Re- 
view, in  twenty-eight  volumes,  especially  the  28th. 
Strictures  on  close  communion  may  be  found  in 
the  Princeton  Repertory,  1850,  557  ;  a  defence  of  it, 
16  Chris.  Rev.  210;  Bib.  Sac.  1862,  133.  The 
Campbellites  and  their  doctrine  are  discussed.  Bib. 
Rep.  1839,  130,  295  ;  also  1840,  202,  472  ;  Christian 
Review,  xx.  146,  and  xxi.  481. 

4.  If  our  esteemed  friends,  the  Presbyterians,  are 
to  be  attacked,  the  materials  maybe  found,  probably, 
in  the  two  Digests  of  Acts  and  Deliverances  of  the 
two  General  Assemblies,  by  Mr.  Moore  and  Mr. 
Baird.  The  Methodists  admit  their  exposure  once 
in  fifteen  years  to  cleavage  or  secession,  on  grounds 
of  polity.     It  would  seem  that  the  Presbyterian  de- 

jiomination,  under  the  best  Scotch  administration,  is 
subject  to  like  accidents.  The  Repertory,  1835,  201 ; 
1844,  403 ;  1846,  29,  describes  the  Moderates,  the 
Reliefs,  the  Seceders,  and  the  Anti-burghers  ;  their 
separations   commencing  in  1736,  and  concluding 


106  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

with  the  great  Free  Church  secession  of  1843.  For 
the  Presbyterian  Church  in  Ireland,  see  Repertory, 
1844,  199. 

The  tendency  to  cleavage,  in  the  American  branch 
of  the  Presbyterian  Church,  was  early  developed  in 
1743,  in  the  matter  of  the  New  York  and  Philadel- 
phia Synods,  Repertory,  1837,  557,  and  completed 
in  1837,  by  the  excision  of  the  New  School  Presby- 
terians ;  and  again  by  the  excision  of  the  Cumberland 
Presbyterians.  See  Repertory,  1844,  581 ;  1847,  495. 
From  the  Repertory  and  Digest,  the  student,  who 
is  curious  in  such  matters,  might  furnish  his  museum 
with  every  pattern  of  armor,  offensive  and  defensive, 
that  has  been  employed  since  1830  in  ecclesiastical 
warfare. 

5.  The  Universalists,  agreeing  in  the  final  holiness 
and  happiness  of  all  men  through  Christ,  are  not 
agreed  as  to  future  punishment.  Some  have  Ortho- 
dox leanings,  others  Unitarian.  See  Univ.  Quar. 
xix.  379 ;  Rev.  Elhanan  Winchester's  case,  1780 ; 
Hist.  Brown  University,  333.  Tendencies  towards 
the  belief  of  annihilation  are  noticed,  Methodist 
Quar.  1858,  148,  410  ;  Rev.  J.  E.  Walton's  case, 
Portland  Christian  Mirror,  Aug.  1,  1865.  Their 
efforts  to  do  away  capital  punishment.  Bib.  Sac. 
iv.  270.  The  historical  connections  of  the  de- 
nomination are  traced.  Examiner,  Mr.  Murray,  viii. 
250 ;  Dr.  Chauncey,  xliv.  367.  The  .meaning  of 
everlasting,  as  applied  to  punishment.  Spirit  of 
Pilgrims,  ii.  405  ;  Examiner,  ix.  20  ;  x.  34,  166  ;  xii. 
97,  169;  Univ.  Quar.  ii.  133;  iv.  16.  Doctrinal 
grounds  are  examined,     Bib.    Rep.  1838,  70  ;  Ex- 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  107 

aminer,  Ixvii.  120.  Doctrinal  and  personal  grounds 
for  renouncing  Universalism  are  discussed,  Reper- 
tory, 1843,  507. 

6.  In  matters  of  public  controversy,  the  Roman 
Catholics  have  mainly  fallen  into  the  hands  of  Epis- 
copalians and  Presbyterians  ;  while  Methodists, 
Baptists,  and  Congregationalists  have,  for  some 
reason,  kept  aloof.  Christmas  v,  Canada  Priests, 
Spectator,  1829  ;  Brownlee  v.  Varela,  and  others. 
New  York,  1834.  The  Hughes  and  Breckenridge 
debate  may  be  found.  Repertory,  1837,  238,  326, 
487.  The  CampbeU  v,  Purcell,  Examiner,  23,  53. 
Kirwan  v.  Hughes,  Repertory,  1848, 617.  The  School 
Question  and  Romanists  in  New  York,  Christian 
Review,  xviii.  441.  The  Jesuits,  Repertory,  1845, 
239.  Mr.  Brownson's  Reasoning,  Examiner,  1850  ; 
his  Career,  Repertory,  1845.  Apology  for  Perver- 
sions from  the  Episcopalians  to  the  Romanists, 
Church  Review,  13.  For  calmer  discussions  of  Ro- 
man Catholic  doctrines  and  usages,  see  Spectator, 
7 ;  Bib.  Sac.  ii.  451  and  757  ;  Repertory,  1856,  601. 
The  Council  of  Trent  is  examined.  Repertory,  1834, 
59  ;  Am.  Theolog.  Rev.  iv.  583  ;  Christian  Review, 
xxi.  112.  The  questions  of  Liberty  and  Romanism, 
Meth.  Quar.  1860,  106  ;  Church  Rev.  viii.  13  ;  Am. 
Theo.  Rev.  iv.  352.  The  Pope's  Encyclical  Letter, 
1865,  see  Living  Age. 

7.  The  controverted  characters  of  various  Protes- 
tant leaders  are  discussed  as  follows :  Calvin,  2 
Bib.  Sac.  329;  43  Examiner,  161;  69  do.  73; 
Repertory,  1850,  417 ;  Meth.  Quar.  1850,  571  ; 
UniversaUst  Quar.   xvi.  113.     Servetus,    Repertory, 


108  MASSACHUSETTS    ECCLESIASTICAL   LAW. 

1836,  74 ;  Bib.  Sac.  iii.  51.  Armenius,  Bib.  Rep. 
1831,   226;     Examiner,   Ixviii.   393;    Meth.    Quar. 

1857,  345. 

8.  As  our  times  point  to  works  of  benevolence 
and  piety  at  home  and  abroad,  waiting  for  the  co- 
operation of  all  denominations,  the  reader  will  grate- 
fully recognize  the  tendency  of  the  learned  quar- 
terlies to  promote  a  better  union  among  Christians. 
Since  1830,  no  small  share  of  ingenuity  has  been 
expended  upon  this  topic.  The  early  plans  for 
union  are  discussed.  Repertory,  1836,  11 ;  the  later 
plans,  1846,  559  ;  1860,  122 ;  Bib.  Rep.  1838,  86, 
363  ;  Christian  Review,  iii.  209  ;  vii.  342  ;  xii.  155  ; 
Meth.  Quar.  1858,427,  538;  Bib.  Sac.  1865,  April; 
Mass.  General  Association,  1844,  27.  As  to  the 
early  and  simultaneous  building  of  churches,  hos- 
pitals, and   schools    in   Christendom,    Meth.    Quar. 

1858,  457.  As  to  the  danger  of  separating  piety 
and  philanthropy.  New  Englander,  1855  ;  Repertory, 
1862,  601.  As  for  Bible,  tract,  missionary,  and 
other  associations,  the  quarterlies  are  full  of  them 
and  their  beneficent  works.  In  the  past,  for  many 
years,  their  movements  have  been  adjusted,  after 
painful  discussions,  so  as  not  to  disturb  compromises 
that  good  men  had  entered  into  in  regard  to  human 
slavery.  It  is  matter  for  congratulation,  that  in  the 
time  to  come  Christian  associations,  relieved  of  this 
mischievous  ingredient,  will  be  able  to  pursue  their 
work,  encountering  merely  such  legitimate  doctrinal 
and  denominational  prepossessions  as  may  remain 
among  good  men  after  this  poor  man's  war  for 
liberty  is  concluded. 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  109 

§  11.  Having  made  a  long  digression  concern- 
ing heresy  and  controversy,  with  the  desire  of 
promoting  the  peace  and  dignity  of  all  Christian 
ministers,  let  us  retm-n  to  our  subject. 

The  courts  of  Massachusetts  have  not  regarded 
ministers  as  a  separate  class,  all  holding  the  same 
rank,  according  to  the  Presbyterian  polity  ;  nor  as  a 
separate  class,  with  various  gi'ades  of  dignity, 
according  to  the  Romish  doctrine ;  but  as  lay 
brethren,  who  may  occasionally  need  the  aid  of  the 
court  to  interpret  the  contracts  that  they  have  made 
with  the  people  ;  and  then  only  in  extremities,  when 
the  minister  and  people  are  both  seeing  how  they 
may  best  part  company. 

The  minister  pursues  his  vocation  as  a  layman ; 
exempt  by  the  law  from  no  service  or  burden  dae 
the  Commonwealth,  except  watch  and  ward,  mili- 
tary and  jury  duty ;  ^  endowed  with  no  privilege, 
except  that  of  obtaining  a  settlement  as  an  inhab- 
itant of  a  town  with  rather  more  ease  than  a 
layman  ;  procuring  thereby  for  himself  and  family  a 
place  in  the  almshouse,  in  cases  of  extreme  poverty, 
earlier  somewhat  than  a  layman  could ;  always 
provided,  however,  he  is  a  "  settled,  ordained 
minister  of  the  gospel."  ^     From  the  unhappy  case 

1  Genl.  Statutes,  ch.  23,  §  6  ;  ch.  13,  §  9 ;  ch.  132,  §  2.  Until  1829, 
ministers  were  exempt  from  taxation. 

2  Genl.  Statutes,  ch.  69,  §  1,  Bellingham  v.  Boylston,  4  Gush.  553  ; 
Leicester  v.  Fitchburg,  7  Allen,  90.  On  demission  of  the  pastoral 
office,  see  Repertory,  1847,  480;  1859,  360.  That  a  minister  of 
the  Established  Church  cannot  of  his  own  authority  secede,  see  Barnes 
V.  Shore,  4  Times  Rep.  593.  Home  Tooke  was  the  occasion,  in  1779, 
of  English  beneficed  ministers  being  excluded  from  the  bar,  and,  in 

10 


110  MASSACHUSETTS  ECCLESIASTICAL   LAW. 

of  Bellingham,  a  new  right  to  town  charity  seems 
to  be  acquired  by  a  minister  at  every  new  settle- 
ment, without  installation  or  ceremony  of  induc- 
tion ;  independent,  too,  of  the  preacher's  intention 
of  remaining  or  of  the  people's  intention  to  keep 
him.i 

§  12.  There  is  another  function  of  the  minister 
that  may  be  worth  describing.  While  the  church  is 
not  a  corporation,  or  quasi  corporation,  the  minister, 
by  various  decisions,  is  a  corporation  sole  ;  i.  e., 
a  corporation  composed  of  one  person.''^  The  dig- 
nity of  being  a  corporation  sole  does  not  at- 
tach to  all  ministers  as  soon  as  licensed  ;  but  only 
to  such  as  are  settled  over  parishes,  where  the 
minister  has  the  title  in  himself  of  the  parsonage 
lands.  He  holds  them  as  such  sole  corporation,  for 
the  use  of  himself  and  his  successors  in  office ;  at 
his  death  or  removal,  the  fee  of  such  lands  is  in 
abeyance  until  his  successor  is  appointed.^  While 
he  is  incumbent,  he  can  convey  such  lands,  with  the 
assent  of  the  parish  ;  if  he  convey  them  without 
such  assent,  his  successor  may  treat  the  conveyance 
as  a  nullity.  During  a  vacancy,  the  parish  alone  is 
entitled  to  the  rents  and  profits.* 

1801,  from  Parliament.  Before  that,  both  careers  were  open  to  the 
clergy.     Law  Mag.  and  Rev.  xiii.  1. 

1  In  this  case,  the  preacher  was  on  a  probation  of  six  months,  and 
resigned  twenty  days  before  it  expired  ;  yet  he  accjuired  a  settlement 
in  the  town,  and  entitled  to  its  charity.  Various  statute  distinctions 
as  to  ministers  are  examined  in  the  chapter  on  marriage,  c.  14,  ^  2. 

2  Brunswick  v.  Dunning,  7  Mass.  447. 
'  Weston  V.  Hunt.  2  Mass.  500. 

*  Gen.  St.  ch.  31,  ^  5.     Cheever  v.  Pierson,  16  Pick.  272,  1834,  and 


MASSACHUSETTS  ECCLESIASTICAL   LAW.  Ill 

Whatever  dignity  may  attach  to  a  few  ministers 
from  being  sole  corporations,  is  fast  diminishing  by 
the  sale  of  ministerial  and  parsonage  lands,  and  by 
statutes  vesting  lands  of  this  description  in  the 
religious  society  directly,  in  preference  to  the 
minister,  —  statutes  partly  intended  to  reach  the 
large  property  vested  now  in  the  Roman  Catholic 
bishop  of  Massachusetts,  who,  by  holding  the  entire 
ecclesiastical  property  of  his  denomination  in  his 
own  hands,  is  erecting  himself  into  a  powerful  per- 
sonage, if  not  a  corporation  sole,  alongside  of  the 
single-handed  Congregational  bishops  of  the  dio- 
cese.^ 

§  13.  Next  to  the  religious  society,  the  corpo- 
ration in  which  Congregational  ministers  have  most 
personal  interest  is  that  which  holds  the  "  ministerial 
fund."  In  almost  every  elderly  parish  of  the  Com- 
monwealth, these  corporations  have  been  created  and 
amended  at  the  rate  of   half  a  dozen  per  annum 

cases  cited.  As  to  sole  corporations  and  quasi  corporations,  see  Over- 
seers V.  Sears,  22  Pick.  122;  Taylor  v.  Edson,  4  Gush.  522.  In  Maine, 
it  has  been  held  that  a  town,  by  vote,  cannot  divest  the  minister  of  his 
title  to  the  ministerial  lot.  Nor  can  they  object  to  the  regularity  of  his 
settlement  after  a  ministry  of  thirty  years.  Bucksport  v.  Spofford,  3 
Fairfield,  487. 

1  Statutes  18.55,  ch.  314,  and  1858,  ch.  133,  are  repealed  by  General 
St.  1860,  ch.  182.  It  would  seem  that  a  burying-ground  conveyed  to 
the  bishop,  "  his  heirs,  and  assigns,"  is  not  within  the  statutes  which 
forbid  a  conveyance  to  him  "  and  his  successors  in  the  ecclesiastical 
office."  Fitzpatrick  v.  Fitzgerald,  13  Gray,  400.  In  New  York,  the 
Catholic  property  question  was  discussed  in  the  Senate,  1855  ;  see 
also  the  letters  of  Archbishop  Hughes  and  Mr.  Brooks.  As  early  as 
1831,  this  subject  was  examined  in  Massachusetts.  See  House  Docu- 
ments, Nos.  16  and  18.  For  the  Connecticut  law  of  1855,  in  regard  to 
Catholic  property,  see  9  Church  Review,  305. 


112  MASSACHUSETTS   ECCLESIASTICAL   LAW. 

since  1790,  so  that  now  they  must  be  some 
hundreds  in  number.^  They  have  readily  obtained 
leave  to  sell  the  ministerial  lands  and  other 
property,  under  restrictions  as  to  paying  the  income 
only  "  forever "  to  the  support  of  a  "  gospel  min- 
ister of  the  Congregational  denomination,"  in  the 
various  towns.  As  in  the  case  of  Andover,  some 
trustees  are  bound  to  take  no  compensation  from 
the  fund.2 

There  are  few  classes  of  corporations  so  numer- 
ous, yet  so  noiseless ;  seldom  appearing  before 
courts  by  suit,  bill,  mandamus,  quo  warranto^ 
or  any  other  process.  It  must  not,  however,  be 
inferred  that  the  courts  relax  their  scrutiny  in  regard 
to  these  funds.  In  a  case  that  came  before  the 
court  of  Maine,  a  minister  was  held  to  a  very 
strict  compliance  of  all  conditions  of  time,  place, 
and  doctrine,  to  entitle  himself  to  the  benej&t  of  one 
of  these  ministerial  funds.^  At  the  same  time,  a 
reasonable  construction  is  given  thus  :  it  has  been 
held  that  a  fund  left  for  the  support  of  the  gospel  in 
"  the  south  part  of  the  town''  did  not  necessarily  con- 
fine the  religious  society  to  the  use  of  the  old  meeting- 
house there.*  These  quasi  corporations,  with  their 
changes  and  peculiarities,  grow  out  of  the  ordinance 

i  For  lists  of  charitable,  literary,  and  religious  incorporations  since 
1 780,  including  ministerial  fund  associations,  see  Senate  Doc.  90,  for 
1836;  House  Doc.  32,  for  1848.  For  strictures  on.  funds,  see  7 
Spec.  588. 

2  St.  1810,  ch.  49. 

8  Hunt  V.  Perlcy,  34  Maine,  32. 

*  Tibballs  v.  Bidwell,  1  Gray,  399 ;  see  also  Hawes  Place  v.  Tras- 
tees,  5  Cush.  454. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  113 

of  1646,  authorizing  the  purchase  of  "  an  habitation 
for  the  use  of  the  present  preaching  elder,  and  so  from 
time  to  time  to  his  successor,"  confirmed  by  the  laud- 
able practice  of  giving  a  lot  "for  the  ministry"  in 
the  first  settlement  of  the  towns  of  Massachusetts, 
an  early  and  a  steady  policy  that  pointed  to  a 
stable  ministry.! 

1  2  Mass.  Rec.  217 ;  Lanesboro  v.  Curtis,  22  Pick.  320.  For 
Amherst  Joint  Stock  Parsonage  Co.,  see  St.  1854,  ch.  366  ;  Churches 
and  Parsonages,  N.  Englander,  1854,  276.  Applications  for  ministe- 
rial fund  corporations  have  greatly  diminished  since  St.  1853,  ch.  389; 
Gen.  St.  ch.  30,  §  25.  An  instructive  decision  as  to  pledging  ministe- 
rial funds  in  futuro  may  be  seen,  Peckham  v.  Haverhill,  19  Pick.  559  ; 
for  another,  as  to  repairs  made  by  the  minister  on  the  parsonage,  see 
Greene  v.  Maiden,  10  Pick.  499. 
10* 


CHAPTER    VIII. 

Deacons  —  Their  Rights,  Duties,  Prerogatives  —  Corporate   Powers  —  What  Con- 
tracts they  may  make  —  Why  the  Church  was  not  incorporated  specifically. 

§  1.  Haying  treated  of  the  minister,  his  rights  and 
dignities,  we  come  to  the  ecclesiastical  officer  next 
in  rank,  to  wit,  the  deacon. 

The  Scotch  Commissioners  of  1643,  it  is  said, 
spent  ten  days  enforcing  upon  the  English  Indepen- 
dents their  Presbyterial  views  in  regard  to  the  ruUng 
elder.  The  ruling  elder  of  the  Cambridge  Plat- 
form, chapter  eight,  had  prerogatives  that  placed  him 
far  above  the  deacon,  and  these  prerogatives  were 
claimed  for  him  by  Mr.  Wise  and  Mr.  White  ;  but 
throughout  Massachusetts,  for  one  hundred  and  fifty 
years,  the  ruling  elder  has  been  merged  in  the  dea- 
cons. Controversial  pamphlets,  in  1725,  refused 
to  regard  the  ruling  elder  as  anything  more  than  a 
"  human  creature."  ^ 

In  the  eye  of  the  law,  deacons  in  Massachusetts 
are  corporations,  or  quasi  corporations.  They  are 
made  so  by  statute,  1754,  for  the  purpose  of  taking 

^  For  the  divine  origin  of  the  riding  elder,  see  various  Presbyterian 
books.  Congregational  Quarterly,  April,  1863.  Monthly  Spectator, 
V.  240;  ix.  281.  Wisner's  Old  South,  79.  Dexter's  Congregation- 
alism, 110.  Repertory,  1840,  511.  The  want  of  ruling  elder  was  one 
ground  of  the  excision  of  1837.  Deacons  and  commit  tee-men  attend- 
ed the  General  Assembly,  unordained  men.  The  status  of  the  ruling 
elder,  in  1860,  was  by  no  means  ascertained  in  the  Presbyterian 
Church  Repertory,  1860,  18.5,  449.  702. 
(114) 


MASSACHUSETTS    ECCLESIASTICAL   LAW.         115 

and  holding,  for  the  church,  in  succession,  all  grants 
and  donations,  whether  real  or  personal  property. 
The  faculty  of  taking  and  holding  property  for  the 
church  is  attached  to  them,  ex  officio,  and  ceases 
when  they  cease  to  be  deacons,  from  any  cause.^ 

The  claim  of  the  deacon  to  prerogatives  is  dis- 
cussed freely  in  the  various  manuals.  In  the  Mid- 
dleboro'  Council  pamphlet,  1744,  to  be  found  in  the 
Old  South  Library,  the  deacon  is  not  allowed  to 
be  "  standing  moderator "  of  the  church,  on  the 
death  of  the  pastor.  "  A  moderator  is  a  matter 
of  convenience.  Deacon  Barrows  had  no  right  to 
dissolve  the  meeting  at  the  Widow  Woods,  be- 
cause he  had  not  called  it.  It  is  the  most  un- 
reasonable thing  in  the  world,  that  the  church 
could  never  have  another  meeting,  or  do  anything, 
without  his  consent.  It  is  an  idle  notion,  that 
churches,  in  every  punctilio,  are  obliged  to  conform 
to  the  rules  of  civil  society."  At  Lancaster,  in  1833, 
Mr.  Carter  claimed,  that  a  deacon,  during  the  term 
of  his  office,  could  not  be  removed  by  the  brethren 
of  a  church,  without  an  ecclesiastical  council.^ 

To  return  to  their  civil  functions,  deacons  sue 
and  are  to  be  sued,  in  case  of  dispute  as  to 
the    ownership    of    church    property.      The    Ded- 

1  Page  V.  Crosby,  24  Pick.  211.  Parker  v.  May,  5  Cush.  336.  Lowell 
V.  Bancroft,  4  Cush.  281.  Elders,  in  law,  are  little  regarded.  In  this 
last  suit,  brought  originally  by  elders  and  deacons,  the  elders  were  or- 
dered to  be  stricken  out. 

^  The  deacon's  tenure  of  oflfice  is  much  discussed  in  the  New  York 
Church  of  the  Puritan  controversies,  1857.  A  preference  is  there  ex- 
pressed for  annual  elections.  The  amotion  of  officers  in  the  Dutch  Re- 
formed Church  is  discussed  in  Doreraus  v.  D.  Ref.  Ch.  2  Green's, 


116  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

ham  case,  Baker  v.  Fales,  was  a  suit  between 
two  sets  of  deacons.  The  Brookfield  case,  Steb- 
bins  and  Jennings,  also  ;  so  of  Sawyer  and 
Baldwin,  Page  and  Crosby.  When  the  church  is 
dissatisfied  with  the  deacons,  they  may  be  sued  by 
a  committee  of  the  church,  as  in  the  case  of  Weld 
and  others  v.  May.  ^  In  case  of  trespass  to  the 
property  of  the  church,  its  records,  or  communion 
furniture,  the  deacons  are  the  parties  to  bring 
suit. 

§  2.  The  corporate  powers  of  deacons  are 
limited  "  to  taking  gifts  and  donations,  and  holding 
property  in  succession  for  the  benefit  of  the  church." 
They  cannot  convey  lands  without  a  vote  of  the 
church.  2  And  it  has  been  strongly  intimated  that 
they  cannot  dispose  of  the  personal  property  of  the 
church  without  such  vote.^  Nor  can  they  give  a 
promissory  note  to  bind  their  successors,  or  the 
church ;  or  enter  into  any  executory  contracts,  nego- 
tiations, or  speculations,  though  they  hope  they  may 
prove  profitable  to  the  church.* 

It  has  been  further  held,  that  neither  the  deacons 
nor  the  church  are  liable  to  suits  from  the  parish  in 
regard  to  church  funds.  Nor  can  the  attorney 
general,  in  behalf  of  the  parish,  institute  such  pro- 
ceedings, on  the  ground   that  church  funds   are  a 


Ch.  332.     The  Presbyterian  Old  and  New  School  Assemblies  express 
a  decided  preference  for  a  life-eldership. 

1  9  Cush.  181. 

2  Gen.  St,  ch.  31,  M- 

8  Parker  v.  May,  5  Cush.  336. 

♦  Jefts  V.  York,  10  Cush.  394  ;  12  Cush.  196. 


MASSACHUSETTS  ECCLESIASTICAL   LAW.  117 

general  charity.^  But  suits  and  proceedings  may- 
be instituted  against  deacons  by  a  committee  of  the 
church.2 

§  3.  It  is  natural  to  inquire  here  whether  the 
church  may  not  have  been  directly  or  indirectly 
incorporated  in  Massachusetts  by  itself  or  along 
with  the  deacons.  The  fact  that,  prior  to  1700, 
no  acts  were  passed  incorporating  any  literary,  benev- 
olent, or  religious  institution  whatever,  excepting 
Harvard  College ;  together  with  the  fact  that  after  the 
year  1780  incorporations  for  every  conceivable  insti- 
tution incidental  to  the  church  were  granted  freely ; 
have  induced  learned  men  to  argue  that  the  churchy 
to  which  incorporated  deacons  and  incorporated 
ministers  and  parishes  were  mere  incidents,  was 
itself  necessarily  a  corporation,  or  quasi  corporation, 
from  the  beginning.  This  claim,  however,  in  be- 
half of  the  church,  urged  with  skill  and  perseverance, 
has  not  been  allowed  by  the  court  at  any  time 
during  the  last  fifty  years,  as  we  have  seen  al- 
ready.^ 

If  we  inquire  whether  the  Legislature  has  made 
any  approach  towards  incorporating  churches,  this 
is  the  answer :  The  earliest  special  act  having  that 
appearance  that  we  have  noticed  was  passed  April 
20,  1779,  incorporating  "  Warwick  church  and 
congregation."  It  seems,  however,  to  have  been 
granted  in  order  to  sell  "  the  ministry  right  of 
land."     The  proprietors  of  Salem  Tabernacle,  incor- 

1  Parker  v.  May,  5  Cush.  336. 

2  Weld  V.  May,  9  Cush.  181. 
^  Chaps,  ante,  iv.  and  v. 


118  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

porated  in  1781,  to  "  value  and  assess  "  the  pews 
"  in  concurrence  with  the  church,"  complain  that 
the  clause  including  the  church  "  is  unusual,"  and 
they  obtain  leave  to  dispense  with  it  in  1794J 

Again  :  Orange  "  church  and  congregation " 
obtained  leave  to  incorporate  themselves  into  "  a 
society,"  in  order  to  hold  their  ministerial  fund. 
These  will  serve  as  illustrations  of  the  special  acts 
incorporating  churches  in  any  sense,  in  Massachu- 
setts, prior  to  1800.^ 

The  absence  of  special  acts  incorporating 
churches  distinctly,  may  be  accounted  for  since 
the  Revolution  thus : 

1.  Churches  of  all  denominations  may  have  been 
deemed  sufficiently  protected  by  general  statutes. 

2.  Applications  for  special  acts  of  incorporation 
for  churches  could  not  be  made  without  the  dis- 
cussion of  creeds  and  confessions  and  usages  before 
the  General  Court. 

3.  Had  special  acts  been  granted,  incorporating 
churches  with  creeds  and  usages,  without  objection, 
the  churches  would  have  rendered  themselves  ame- 
nable to  the  General  Court ;  and  there  might  be  com- 


1  St.  1781,  ch.  13;  1794,  ch.  11. 

2  St.  1784,  ch.  20.  For  similar  special  acts,  see  Pamphlet,  1828,  in 
reply  to  strictures  on  Hanover  Street  Trust  Deed,  Historical  Society. 
The  Old  South  Church  has  had  its  corporate  name  changed  by  Act  of 
1859,  ch.  88,  to  Old  South  Society.  Per  contra,  the  Universalist  Con- 
vention of  1863,  tending  towards  a  Presbyterian  polity  rather  than  a 
Congregational,  advise  churches  to  become  incorporated,  not  societies. 
So  of  tlic  Episcopalians,  whose  style  prior  to  1833  was  "  Convention 
of  the  Churches ; "  since,  "  Convention  of  the  Church  in  this  Com- 
monwealth." 


MASSACHUSETTS  ECCLESIASTICAL  LAW.  119 

menced  the   inquest,  the  quo  warranto^  and  other 
legal  measures  against  churches  so  incorporated. 

4.  The  patriots  of  1780,  who  framed  the  Bill  of 
Rights,  were  careful  lawyers.  When  they  refrained 
from  incorporating  churches,  they  had  in  their  minds 
the  terrors  of  English  acts  of  uniformity,  the  Anti- 
nomian  discussions  of  Colonial  times,  together  with 
the  painful  incidents  of  the  quo  warrantos  of  1665 
and  1685.1 

1  The  acts  of  uniformity  are  well  described  in  Mr.  Punchard's  Hist. 
Cong.  2d  ed.  For  the  Quo  warrantos,  see  Mr.  Palfrey's  History ;  see 
further,  ch.  13,  §  13.  The  indisposition  to  incorporate  a  church  or 
church  polity  is  increasing,  rather  than  diminishing.  See  Senate 
Docs.  17  and  38,  for  1844;  also  89,  for  1847.  See  Lord  Brougham's 
Strictures  on  Mr.  Hallam,  for  calling  the  Church  of  England  "  The 
first  corporation  in  the  realm."  1  British  Constitution,  272,  1861. 
That  it  is  rather  a  department  of  the  English  Government,  as  our 
army  and  navy,  see  New  Englander,  1849,  256;  28  Examiner,  171. 
The  General  Assembly  of  the  Presbyterian  Church  is  no  corporation 
or  quasi  corporation.    Com  v.  Green,  4  Wharton,  531. 


CHAPTER    IX. 

Religious  Societies  —  Organization  —  Incorporation  —  Roman  Catholics  —  Federal 
Street  Society  —  Park  Street  Trust  Deed  —  Taxes,  how  levied  —  Officers  —  By- 
Laws  of  Religious  Societies,  their  Relief,  their  Extinction. 

§  1.  There  are  few  statutes  and  decisions  relating 
to  churches  and  deacons :  in  regard  to  parishes  and 
religious  societies,  they  are  very  numerous. 

The  early  distinction  between  the  territorial  par- 
ish, including,  after  the  English  model,  a  definite 
tract  of  land,  and  the  poll  parish,  made  up  of  indi- 
viduals, —  between  voluntary  religious  societies  and 
incorporated,  —  may  be  traced  in  the  cases  cited  be- 
low.^ These  distinctions,  so  momentous  at  one  time, 
began  to  be  effaced  by  the  religious  freedom  act  of 
1811,  and  the  numerous  special  charters  of  incorpo- 
ration. That  ihey  are  now  abandoned,  may  be  seen 
in  the  General  Statutes,  1860,  where  the  term  "  relig- 
ious society "  includes  the  parish  in  many  sec- 
tions. 

§  2.  Such  are  now  the  facilities  of  organizing 
and  incorporating  a  religious  society,  of  any  denom- 
ination, that  ten  or  more  of  its  members,  being 
voters,  by  following  the  plain  directions  of  the  stat- 
ute, may  obtain  all  the  advantages  of  organization 
and  incorporation  that  the  Commonwealth  has  to  be- 

1  Fisher  v.  Whitman,  13  Pick.  350  ;    Tobey  v.  Wareham,  White  v. 
Braintree,  13  Met. ;  Parker  v.  May,  5  Cush.  336. 


MASSACHUSETTS    ECCLESIASTICAL   LAW.  121 

stow.^  Before  any  ceremony  of  organization  and  in- 
corporation under  the  Statute,  which  dates  back  to 
the  year  1824  at  least,  these  parties  were  voluntary 
religious  societies,  and  had  important  rights.  They 
could  perform  religious  worship  ;  they  could  receive 
and  hold  property.^ 

Now,  persons  who  own  a  church  edifice,  or 
other  house  of  public  worship,  may  incorporate 
themselves ;  the  clerk  taking  care  to  leave  with  the 
town  clerk  a  copy  of  the  proceedings  of  the  meet- 
ing for  organization.  They  may  become  a  "  reli- 
gious society,"  if  they  are  going  to  build  a  meeting- 
house, by  taking  the  same  precautions.  All  the 
meeting-houses  so  built,  and  all  the  meeting-houses 
and  church  edifices  in  the  Commonwealth,  new  or 
old,  are  protected  from  wilful  and  malicious  in- 
jury, by  a  penalty  of  five  hundred  dollars  or  impris- 
onment.^ And  in  general,  that  every  avenue  to  do- 
ing good  or  getting  good  may  be  opened  wide  and 
large,  the  Legislature,  since  1853,  have  allowed  any 
seven  persons  to  associate  themselves  in  writing, 
under  any  name,  for  educational,  charitable,  and 
religious  purposes,  and  become  a  corporation,  capa- 
ble of  holding  one  hundred  thousand  dollars,  real 
and  personal  property  ;  taking  care  to  record,  in  the 
registry  of  deeds,  their  corporate  name,  objects,  arti- 
cles of  association.** 


i  Gen.  Stat.  ch.  30,  §  4,  5.    Appendix  C 

2  St.  1824,  ch.  106;   Christian  Society  v.  Macomber,  3  Met.  235; 
Lawrence  v.  Fletcher,  8  Met.  154. 

3  Gen.  St.  ch.  30. 

*  Stat.  1853,  ch.  389  ;  Gen.  St,  ch,  32,  §  1.     Appendix  C. 
11 


122  MASSACHUSETTS    ECCLESIASTICAL  LAW. 

Truly  a  great  change  from  the  ancient  law  eccle- 
.siastical  in  Massachusetts,  when  the  General  Court, 
following  the  English  ecclesiastical  law,  announced 
that  they  intended  that  "  the  teaching  officer  of 
churches  should  be  the  minister  to  all  the  people  in 
that  town  where  such  church  is  planted  ;  "  "  that  the 
General  Court  doth  not  nor  will  approve  of  any 
such  companies  of  men,  as  shall  join  in  any  pre- 
tended way  of  church-fellowship,  unless  they  shall 
acquaint  three  or  four  magistrates  dwelling  next, 
and  the  elders  of  the  neighboring  churches,  where 
they  intend  to  join,  and  have  their  approbation 
therein."  As  for  meeting-houses,  they  must  be 
erected  "  with  consent  of  the  freemen  of  the  town, 
first  orderly  had  and  obtained,  and  license  of  the 
County  Court ;  or,  in  defect  of  such  license,  by  the 
special  order  of  the  General  Court."  The  meeting- 
house not  sanctioned  in  this  way  might  be  forfeited, 
"  with  the  land  whereon  it  stood,  and  the  private 
ways  leading  thereto,  to  the  use  of  the  county,  and 
disposed  of  by  sale  or  demolishing."  ^ 

The  General  Court  thus  exercised,  in  early  times, 
a  supervision  of  the  matter  of  religious  societies 
and  meeting-houses,  not  unlike  that  of  a  bishop  in 
the  English  Church,  who  had  the  power  of  sanc- 
tioning or  not  sanctioning  the  building  of  churches ; 
and  refused  to  consecrate  them,  if  built  in  places 
where,  in  his  judgment,  they  were  not  needed,  or  in- 
terfered with  churches  already  established.^ 

A  Anc.  Char.  100,  104. 

2  In    1669,   the   Selectmen    of   Boston   voted    for  a  tliird  meeting- 
house (Old  South) ;  but  the  General  Court  deeming  it  unnecessary,  the 


MASSACHUSETTS    ECCLESIASTICAL   LAW.  123 

§  3.  The  prerogative  of  incorporating  religious 
societies  has  resided  in  the  General  Court,  and  been 
exercised  with  sufficient  liberality.  The  grace,  favor, 
or  dignity  of  incorporation,  whatever  it  may  be 
called,  was  not  much  sought  for  at  first.  In  Bos- 
ton, where  the  pew-holders  were  the  religious  society, 
we  find  a  few  incorporated  as  early  as  1803,  for  con- 
venience' sake.  In  the  rural  districts,  parishes,  the 
equivalents  of  religious  societies,  were  quasi  corpo- 
rations, immortal  enough,  and  convenient  enough 
for  all  practical  purposes.  Prior  to  1810,  says  Judge 
Story ,^  very  few  parishes  or  religious  societies  along 
the  seaboard  had  special  acts  of  incorporation. 
After  that  time,  however,  from  causes  already  no- 
ticed, the  granting  of  special  acts  occupied  no  small 
share  of  the  time  of  the  General  Court.  Orthodox 
Congregationalists  have  been  very  careful  to  obtain 
such  special  acts.  Some  societies  have  been  twice 
and  three  times  incorporated.  Most  of  the  Ortho- 
dox societies  in  Boston  have  been  re-incorporated 
since  the  year  1830,  in   order  to  take  advantage  of 

election  of  1670  turned  upon  that  question.  And  for  thirteen  years 
the  first  church  refused  to  recognize  the  third.     Wisner's  Old  South,  9. 

To  locate  the  meeting-house  properly  was  no  easy  task  in  the  olden 
times.  One  town  in  Massachusetts  employed  a  surveyor  for  the  pur- 
pose for  months,  who  was  charged,  1st,  to  find  the  centre  of  territory  ; 
2d,  the  centre  of  population ;  3d,  the  centre  of  wealth ;  and,  4th,  the 
centre  of  those  three  centres.  The  fourth  centre  was  not  adopted  in  the 
end,  however.  Agreeably  to  sec.  2,  canon  5,  title  3,  of  Digest  of 
Canons  of  Prot  Epis.  Church  in  the  United  States,  the  Standing 
Committee  of  the  Diocese  of  Massachusetts,  since  1861,  give  or  with- 
hold assent  to  the  formation  of  new  parishes. 

^  Convention,  1820. 


124  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

the  favorable  provisions  of  the  statutes.^  All  the 
religious  societies  in  Andover,  except  the  Old  South 
and  the  Free  Church,  have  been  specially  incorpo- 
rated ;  the  Methodist  in  1832,  the  Baptist  in  1834, 
and  the  Episcopal  in  1837,.  and  again  in  1855, 
authorized  to  hold  two  thousand,  three  thousand, 
and  twenty  thousand  dollars,  respectively.'^  Over- 
burdened at  length  with  applications  for  char- 
ters for  religious  societies,  the  Legislature  passed 
laws  authorizing  men  to  incorporate  themselves,  by 
the  simple  process  that  we  have  described,  which 
answers  the  purpose  so  well,  that  few  special  acts, 
incorporating  religious  societies,  have  been  granted 
since  1856.^ 

§  4.  The  numerous  special  acts  of  incorporation 
in  former  years  are  a  useful  index  of  the  legal 
doubts  and  ecclesiastical  temper  of  the  times.  Prior 
to  the  religious  freedom  act  of  1811,  two  significant 
clauses  are  found  in  the  Baptist  acts  of  incorpora- 

1  For  Old  South,  see  acts  1845,  ch.  229,  and  1859,  ch.  88.  That 
debts  are  not  discharged  by  re-incorporation,  see  Epis.  Ch.  Soc.  v. 
Epis.  Ch.  Dedham,  1  Pick.  371.  The  effect  of  re-incorporation  is  held, 
in  New  Jersey,  to  be  reviving  and  perpetuating  to  an  old  society. 
Miller  v.  English,  1  Zubriskic,  321.  As  to  merger  by  incorporation, 
St.  Luke's  V.  Slack,  7  Cush.  230. 

■^  In  case  of  an  ancient  religious  society,  the  Court  have  presumed 
an  act  of  incorporation  after  thirty  years.  Attorney  General  v.  Fed- 
eral Street,  3  Gray.  Sec  also  Cobb  v.  Kingman,  15  Mass.  197  ;  Bland- 
ford  V.  Gibbs,  2  Cush.  39  ;  3  Met.  288  ;  4  Gush.  487. 

^  There  are  still  special  acts,  authorizing  the  sale  of  ministerial  lands, 
changing  the  name,  legalizing  proceedings,  allowing  lands,  cut  up  by 
useless  roads,  to  be  enclosed  (West  Cambridge).  For  Keligious  So- 
cieties incorporated  from  1780  to  1848,  see  Senate  doc.  90,  for  1836, 
and  House  doc.  32,  for  1848.  There  are  omissions  in  the  early  years, 
which  may  be  easily  corrected  when  a  uniform  edition  of  the  laws  is 
published. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  125 

tion  ;  showing  a  person,  first,  how  he  may  become  a 
member  of  the  religious  society,  and,  next,  how  he 
may  leave  it,  "  in  case  he  renounces  Baptist  princi- 
ples." Special  acts  for  Congregationalists  often 
contain  provisions  allowing  a  member  of  a  Congre- 
gational society  to  join  the  new  society  in  the  same 
town,  within  a  year  after  reaching  twenty-one,  —  a 
question  that  was  not  entirely  free  from  doubt  until 
the  Stat,  of  1824,  ch.  106.  There  are  also  provisions 
at  an  early  date,  for  making  by-laws,  and  taxing 
pews  according  to  a  valuation. 

Without  critical  examination,  it  may  be  said  there 
was  no  lack  of  diligence,  after  1811,  in  procuring 
general  as  well  as  special  acts  ;  thus,  St.  1818,  ch.  77, 
184,  St.  1823,  ch.  106,  made  all  the  improvements  in 
the  territorial  parish  system  of  which  it  was  capable. 
St.  1817,  ch.  189,  allowed  proprietors  of  meeting- 
houses to  regulate  their  affairs  and  tax  their  pews. 
The  taxing  of  pews  was  not  perfected,  however, 
until  St.  1845,  ch.  213,  and  1822,  ch.  319.i  The 
Senate  documents,  4,  23,  for  1829,  and  25,  for  1831, 
House  documents  23,  for  1830,  and  97,  for  1831, 
foreshadow  changes  hardly  yet  completed.^ 

Amid  the  anxiety  and  haste  of  various  denomi- 
nations to  secure  the  protection  of  the  Common- 
wealth by  acts  of  incorporation,  there  is  something 
dignified  as  well  as  startling  in  the  independence 
of  the  Roman  Catholic  church.  Without  general 
laws  for  its  protection,  without  special  acts  of  in- 
corporation, or  an  application  for   one,  it  has  gone 

1  Newbmy  v.  Dow,  3  Allen,  369,  as  to  acceptance  of  St.  1845  by 
proprietors  of  meeting-houses  erected  prior  to  that  time. 
11* 


126  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

forward  in  the  planting  of  its  churches  in  all  parts 
of  Massachusetts,  since  the  year  1790,  retaining  all 
its  ecclesiastical  property  in  the  hands  of  the  Roman 
Catholic  bisliop  of  the  dioceseJ  / 

§  5.  Under  the  decisions  of  our  courts,  it  is  doubt-  / 
fal  whether  acts  of  special  or  general  incorporation 
are  of  any  use  except  for  the  convenience  of  hold- 
ing property.  Certainly  no  immortality  of  sound 
doctrine  or  church  government  is  secured  by  such 
acts.  It  is  questionable  whether  anything  would 
save  a  meeting-house,  especially  in  Boston,  from 
any  use  to  which  the  bond  fide  proprietors  of 
pews  might  choose  to  put  it.  The  Presbyterians 
of  Long  Lane,  in  Boston,  endeavored,  in  1735, 
by  a  deed  of  trust,  to  put  their  church  under 
the  fostering  care  and  discipline  of  the  Presby- 
terian Church  of  Scotland.  Should  they  wake  up 
now,  they  would  find  their  meeting-house  divested 
of  Rouse's  version  of  the  Psalms,  the  Assem- 
bly's Catechism,  and  everything  that  distinguishes 
the  Presbyterian  Church.-  In  the  room  of  all 
these,  they  would  find  now,  incorporated  by  the 
special  act  of  1805,  confirmed  by  the  Statute  of 
Limitations,  and  the  decision  of  the  Supreme  Court 
in  1854,  the  Congregational  Unitarian  Society,  late 
of  Federal  Street,  now  of  Arlington  Street.^ 

1  For  attempts,  in  1855,  to  prevent  Roman  Catholic  churcli  lands 
from  vesting  in  the  bishop,  see  ch.  7,  §  12. 

^  For  the  change  of  King's  Chapel  from  Episcopal  to  Unitarian 
standards,  see  Dr.  Greenwood's  History.  For  changes  and  removals 
of  the  Second  Church  of  Boston,  over  which  Cotton  Mather  once  pro- 
Bided,  see  49  Examiner,  512. 

'  Attorney  General  v.  Federal  Street  Meeting-honse,  3  Gray,  I .     In 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  12t 

§  6.  To  avoid  the  uncertainties  of  the  law,  and 
secure  the  perpetuity  of  their  docti'ines  and  discipline, 
the  founders  of  Park  Street  religious  society,  in 
1809,  adopted  a  trust  deed,  drawn  with  elaborate 
care,  intending  to  secure  the  right  of  electing  the 
minister  to  "the  successive  male  members  of  the 
church  forever,"  without  respect  to  pew-holders. 
The  same  course  was  taken  in  1822,  by  the  Essex 
Street  society  ;  in  1824,  by  the  Congregational  so- 
ciety in  South  Boston;  in  1826,  by  the  Hanover 
Street,  now  Bowdoin  Street,  society;  in  1828,  by 
the  Salem  and  Pine  Street  societies,  and  by  several 
others.^ 

On  trial,  these  elaborate  trust  deeds,  in  imita- 
tion of  the  English  dissenting  chapel  deeds  of  trust, 
have  not  been  found  to  suit  ministers  or  people  in 
Massachusetts  ;    and  they   are   either    modified   or 

this  case,  the  words  of  the  trust  deed,  "  according  to  the  tenures  and 
after  the  same  manner  as  the  church  of  Scotland  hold  and  enjoy  land," 
are  construed  by  the  Court  not  to  refer  to  the  religious  doctrines  of  the 
associates,  but  to  the  tenure  by  which  the  land  is  held.  In  Pennsylva- 
nia, the  extent  of  the  foreign  supervisory  jurisdiction  in  the  Presbyterian 
Church  is  discussed,  1851,  Skilton  v.  Webster,  Bright,  235  ;  the  extent 
of  domestic  jurisdiction,  in  Com  v.  Green,  4  Wharton,  531 ;  York  v. 
Johnston,  1  W.  &  S.  9 ;  Means  v.  Presbyterian  Church,  3  W.  &  S. 
313,  1842.  English  trust  deeds  are  not  inflexible:  Lang  y.  Purvis, 
1860.  5  Times  Rep.  809,  allows  a  Presbyterian  church  to  exchange 
home  for  colonial  supervision.  Attorney  General  v.  Gould,  3  Times 
Rep.  495,  allows  a  Particular  Baptist  church  to  substitute  open  com- 
munion for  close  communion. 

1  The  Pine  Street  deed  may  be  seen  in  Suffolk  Registry,  lib.  328, 
fol.  5  ;  the  revocation,  lib.  364,  fol.  26.  A  vigorous  legal  and  theo- 
logical defence  of  these  conveyances  may  be  found  in  a  pamphlet  by 
Dr.  Wisner,  1828,  in  reply  to  attacks  on  them,  in  1827.  Historical 
Society. 


128  MASSACHUSETTS   ECCLESIASTICAL   LAW, 

abandoned  in  a  few  years.  Thus,  Park  Street, 
1835,  obtains  an  act  of  incorporation,  with  the 
privilege  of  taxing  the  pews,  pursuant  to  the 
act  of  1817 ;  i  and  Essex  Street  society,  1837, 
follows  her  example.  In  1831,  by  unanimous 
vote  of  the  church  and  society,  the  Pine  Street 
trust  deed  was  abandoned,  and  the  trustees  con- 
veyed to  "the  Pine  Street  Religious  Society,"  in- 
corporated the  same  year.  This  society  wishing 
to  sell  their  property  in  1858,  and  the  question  aris- 
ing, whether  the  trust  could  be  thus  discharged  by 
vote,  they  applied  to  the  Supreme  Judicial  Court, 
and  obtained  the  relief  which  they  asked,  from  the 
apparently  perpetual  trust  of  1828.^ 

1  St.  1835,  ch.  81  ;  St.  1817,  ch.  189. 

2  St.  1831,  ch.  37;  also  1858,  ch.  153.  See  Tudor  on  Charitable 
Trusts,  ch.  8,  §  3,  for  Dissenting  Trust  Deeds  in  England.  Pine  Street 
Eeligious  Society  v.  Weld,  March  Term,  1858,  Gray's  Kep.  In  New 
York,  religious  societies  cannot  sell  their  real  estate  without  leave  of 
Court,  Manning  v.  Moscow,  27  Barbour,  52. 

Any  church  or  religious  society,  it  is  said,  may  safely  become  Congre- 
gational, in  New  York,  by  observing  the  following  cautions  :  — 

1.  Do  all  the  work  of  disposing  of  the  property  through  the  present 
organization,  existing  unimpaired  and  unaltered,  a.  Let  the  society,  in 
regular  meeting,  pass  a  vote,  instructing  the  trustees  to  sell  the  property. 
h.  Let  the  trustees,  in  like  manner,  pass  a  vote  to  sell.  c.  Get  an  order 
of  the  Supreme  Court,  authorizing  and  directing  the  sale  according  to 
these  votes,  d.  Then  let  the  trustees  of  the  present  organization  sell 
and  Qonvcy  the  property  to  the  new  Congregational  society,  which  will 
have  been  organized  in  the  meantime.  2.  The  best  time  to  organize  the 
Congregational  society,  if  not  already  done,  will  be  after  the  order  of 
sale  has  been  obtained  from  tlie  Court.  Any  members  of  the  old  so- 
ciety can  join  in  calling  the  meeting  and  forming  the  new  society. 
3.  The  Congregational  society  should  be  formed  and  fully  organized, 
with  trustees  and  all  officers,  and  registered  according  to  tiie  forms  of 
the  statute,  before  it  undertakes  to  buy  the  property  of  the  old  society. 


MASSACHUSETTS   ECCLESIASTICAL   LAW.  129 

Whatever  value  there  may  be  in  doctrines  or  dis- 
cipline, no  trust  deed  or  legislation  has  yet  been 
found  in  Massachusetts,  to  preserve  them  immova- 
bly in  one  spot  forever.  We  carry  forward  our 
valued  reUgious  and  benevolent  enterprises  hopefully 
and  cheerfully  in  our  day,  under  general  statutes  or 
frail  acts  of  incorporation,  liable  to  be  revoked  at 
the  pleasure  of  the  Legislature. 

§  7.  We  next  inquire  what  a  religious  society 
may  do. 

•An  organized  religious  society,  with  or  without 
incorporation,  may  assess  its  members  for  the  sup- 
port of  public  worship  and  other  incidents  thereto, 
such  as  the  improvement  of  burial-grounds  and  mu- 
sic.^ Such  assessments  may  be  laid  on  individuals, 
"  as  town  taxes  are  by  law  assessed,"  or  on  the 
valuation  of  pews,  or  by  both  methods ;  and  the 
assessment  properly  laid  upon  members  of  a  re- 
ligious society  may  be  enforced  by  suit,  or  by 
sale   of  the   pew   after  reasonable   notice.^     There 


4.  In  all  such  cases,  a  majority  vote  is  sufficient,  when  the  proceedings 
are  all  regular.  5.  Then  call  an  ecclesiastical  council  of  Congre- 
gational churches,  not  less  than  three,  and  better  if  more,  to  recog- 
nize the  church,  as  in  fellowship  with  other  Congregational  churches. 
6.  It  is  better  to  have,  if  attainable,  but  not  indispensable  if  unkindly- 
withheld,  a  vote  of  the  present  church  authority,  dismissing  and  recom- 
mending, in  good  and  regular  standing,  such  members  as  desire  to 
unite  in  forming  a  Congregational  church. 

^  Assessments  for  sacred  music  were  allowed  by  St.  1822,  ch.  67. 

2  Bangs  V.  Snow,  1  Mass.  181  ;  Gen.  St.  ch.  30,  §  20.  Mussey  v. 
Bulfinch  Street  Church,  1  Cush.  148.  Ware  v.  Sherburne,  8  Cush. 
267.  In  Virginia,  by  act  of  1830,  no  religious  society  shall  tax  itself 
to  build,  repair,  or  support  the  minister,  Repertory,  1848,  200.  The 
various  modes  of  supporting  the  gospel  are  discussed,  1 5  Christian  Re- 


130  MASSACHUSETTS    ECCLESIASTICAL  LAW. 

may  be  cognate  objects  for  which  a  religious  society 
may  not  assess  its  members,  but  for  which  it  may 
receive  and  hold  gifts,  devises,  and  bequests ;  and 
among  such  objects  are  schools.^ 

Where  the  assessment  is  laid  upon  the  mem- 
bers of  a  religious  society  "in  the  same  manner 
and  proportion  as  town  taxes  are  by  law  as- 
sessed," the  following  rules  have  been  adopted  by 
the  courts. 

1st.  The  taxes  of  two  years  cannot  be  granted 
and  assessed  in  one  year ;  but  they  are  to  be  granted 
and  assessed  annually  ;2  and  the  sworn  parish  as- 
sessors are  not  at  liberty  to  use  the  valuation  list  of 
the  town  assessors,  but  must  make  one  of  their 
own,^ 

2d.  The  tax  granted  in  one  parochial  year  and 
assessed  the  next  is  not  binding  on  the  parishioner, 
who  ceases  to  be  a  member  of  the  parish  before  the 
assessment.^ 

3d.  Following  still  the  analogy  of  town  assess- 
ments, the  assessment  of  the  parish  or  religious  so- 
ciety, for  the  parochial  year,  does  not  bind  one  who 
ceases  to  be  a  member  of  the  parish  before  the  first 
day  of  May  of  that  year.^ 

view,  420  ;  Free  Pews,  Church  Rev.  vols,  viii,  ix.  xiii.  A  writer  in  the 
Cong.  Quarterly,  1860,  329,  proposes  to  dispense  with  the  society,  and 
throw  the  support  upon  the  cliurch  alone. 

1  Sutton  V.  Cole,  3  Pick.  232  ;  White  v.  Braintree,  13  Met.  506. 

2  Nason  v.  Whitney,  1  Pick.  140. 

8  Gen.  Stat.  30,  §  21 ;  Granger  v.  Parsons,  2  Pick.  392. 
*  Inglee  v.  Bosworth,  5  Pick.  501  ;  Dow  v.  Sudhury,  5  Met.  73. 
6  Ware  v.  Sherburne,  8  Cush.  267;  Whitteraore  v.  Smith,  17  Mass. 
349. 


MASSACHUSETTS  ECCLESIASTICAL  LAW.  131 

§  8.  The  officers  of  a  religious  society  are  a  mod- 
erator, a  sworn  clerk,  two  or  more  sworn  assessors, 
a  sworn  treasurer,  and  a  sworn  collector,  "  and  such 
others  as  they  think  necessary."  ^  There  are  no 
decisions  affecting  these  parish  officers,  except  the 
treasurer;  who  cannot,  without  an  express  vote  of 
authority,  give  a  promissory  note,  whether  the  so- 
ciety is  incorporated  or  unincorporated.^ 

In  the  case  of  an  Episcopal  religious  society,  it 
has  been  held,  that  a  meeting  of  the  proprietors  is 
properly  called  by  a  warrant  signed  by  the  chairman 
and  clerk.  (The  like  rulings  would  probably  be 
made  in  similar  cases,  affecting  other  denominations.) 
That  illegal  votes  do  not  vitiate  the  election  of 
officers,  unless  they  are  sufficient  to  affect  the  result. 
"Where  there  are  no  by-laws  to  the  contrary,  the 
vestry,  without  a  warden,  may  transact  business. 
"Where  there  are  no  by-laws  to  the  contrary,  a  vote 
to  choose  officers  by  ballot^  at  a  number  of  previ- 
ous annual  meetings,  does  not  prevent  an  election 
by  hand  vote ;  though  confusion  may  be  incident 
to  the  method  of  electing  officers  by  hand  vote. 
Also  that  a  vote  to  increase  the  number  of  ves- 
trymen cannot  bind  those  already  in  office  until  the 
new  officers  are  elected.^ 

§  9.  How  to  organize  a  religious  society  ;  how  to 
amend  one  imperfectly  organized  ;  who  are  intended 
to  be  organized ;  at  what  point  of  time  they  are  or- 

1  Gen.  Stat.  ch.  30,  §  15,  and  St.  1865,  ch.  100,  allow  the  moderator 
to  swear  the  clerk,  and  the  clerk  swears  the  others. 
'''  Packard  v.  Universalist  Society,  10  Met.  427. 
'  Wardens  y.  Pope,  8  Gray,  140.    Since  1858,  the  wardens  and  vestry 


132  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

ganized ;  and  what  can  be  done  by  a  religious  socie- 
ty before  and  after  organization,  —  were  questions 
much  discussed  by  the  courts  heretofore  ;  but  the 
statutes  now  are  so  full  as  to  require  merely  a 
reference  to  the  decided  cases.^  The  General  Stat- 
ues, ch.  30,  provide  specific  directions  as  to  or- 
ganization ;  and  authorize  parishes  and  religious 
societies,  incorporated  and  unincorporated,  to  make 
by-laws  and  prescribe  as  to  terms  of  membership.  It 
would  seem  that  in  proceedings  subsequent  to  organ- 
ization, where  the  society  has  no  by-laws,  and  the 
statute  is  specific  on  the  subject,  the  statute  is  to  be 
followed  strictly .2  In  their  by-laws,  religious  socie- 
ties may  make  such  terms  of  membership,  and  for- 
feiture of  membership,  as  they  choose,  unless  re- 
stricted by  their  articles  of  association,  the  act  of 
incorporation,  or  the  public  laws.*^ 

of  Protestant  Episcopal  churches,  in  the  absence  of  by-laws,  discharge 
the  duties  of  moderator,  standing  committee,  assessors,  and  collectors. 
Gen.  St.  ch.  30,  §  19.  Appendix  C 

Since  1847,  trustees  of  Methodist  and  African  Methodist  Episcopal 
Churches  are  empowered  to  discharge  the  duties  of  wardens,  vestry,  and 
deacons.     Gen.  St.  ch.  30,  §  43. 

1  See  Sutton  v.  Cole,  3  Pick.  232.  Fisher  v.  Whitman,  13  Pick.  350. 
Proprietors  of  St.  Luke's  v.  Slack,  7  Cush.  230.  Wood  v.  Cushing, 
6  Met.  448.     Ladd  v.  Clements,  4  Cush.  476. 

2  Wiggin  V.  Elders,  8  Met.  301.  Gorton  v.  Hadsall,  9  Cush.  508. 
Various  acts  legalizing  the  organization  and  other  doings  of  religious 
societies,  may  be  found  in  the  Massachusetts   Special  Acts  since   1850. 

The  reader,  who  is  curious  in  these  matters,  will  find  the  rurliments  of 
the  law  of  1860,  in  regard  to  organizing  parishes  and  religious  societies, 
contained  in  Provincial  Statutes  from  1694  to  1763,  in  regard  to  organ- 
izing parishes,  precincts,  districts,  and  towns,  cited  in  chapter  first  of 
this  work,  ^  3. 

^  Taylor  v.  Edson,  4  Cush.  522.  For  good  by-laws,  see  Dexter  ou 
Congregationalism,  211. 


MASSACHUSETTS   ECCLESIASTICAL   LAW.  133 

§  10.  The  mode  of  obtaining  relief  for  religioua 
societies  and  parishes  in  court  is  not  peculiar :  they 
have  a  longer  time  allowed  them  for  appearance  in 
courtj  to  answers  suits,  than  individuals.  They  are 
so  far  public  corporations,  that  tlie  court  will  issue  a 
mandamus  compelUng  a  party  to  restore  their  rec- 
ords to  the  custody  of  the  proper  officer.^  They 
are  so  far  public  corporations,  also,  that  a  mem- 
ber cannot,  under  St.  of  1852,  ch.  312,  §  42,  ob- 
tain a  writ  of  quo  warranto  in  case  of  an  antici- 
pated illegal  sale  of  property,  or  an  illegal  tax  is 
levied.^ 

The  parish,  we  have  already  seen,  has  no  right 
by  suit,  or  through  the  attorney  general,  to  in- 
quire what  disposition  the  church  or  the  deacons 
have  made  of  church  property ;  such  property  be- 
ing held  in  trust  for  the  benefit  of  the  church.^ 
Nor  can  the  public,  through  the  attorney  general, 
inquire,  on  grounds  of  public  charity,  what  dispo- 
sition the  parish  or  religious  society  have  made  of 
its  own  funds.* 

It  may  further  serve  to  qualify  impressions  that 
pew-holders  entertain  in  regard  to  their  combined 
powers,  to  know  that  the  court  has  intimated  in 
several  cases,  that  there  may  be  rights  of  the  parish 
and   rehgious    society,    distinct   from   those    of  the 


1  Proprietors  of  St.  Luke's  v.  Slack,  7  Cush.  230.    Gen.  St.  ch.  123, 
§  22. 

2  Gen.  Stats,  ch.  145,  §  16  ;  Goddard  v.  Smithett,  3  Gray,  116. 
8  Parker  v.  May,  5  Cush.  336.     Ch.  5,  §  2. 

*  Attorney  General  v.  Federalist,  3  Gray,  1  Att.  Gen.  v.  Merrimack 
Co.  4  Gray,  586.     See  ch.  13,  §  6. 
12 


134  MASSACHUSETTS  ECCLESIASTICAL  LAW. 

pew-owners,  dependent  upon  the  organization  and 
construction  of  the  society.^ 

§  11.  Having  followed  a  religious  society  thus  far 
through  so  many  stages  of  its  life,  we  become  curi- 
ous about  its  dissolution.  We  shall  find  that  once 
organized,  whether  incorporated  or  not,  a  religious 
society  is  not  easily  dissolved.  A  voluntary  society, 
which  had  met  for  organization  merely,  two  years 
previous,  which  had  never  met  for  public  worship,  or 
had  a  minister,  whose  records  had  been  burned  up, 
and  its  members  mostly  scattered  or  withdrawn,  was 
held,  nevertheless,  not  to  be  dissolved.^  On  the 
other  hand,  "  The  six  principle  Baptist  church"  whose 
members  were  reduced  to  two,  and  they,  after  notice, 
voted  no  longer  to  maintain  the  appearance  of  a  vis- 
ible church,  declaring  it  dissolved  and  extinct,  and 
entering  the  same  on  their  records,  it  was  held  by 
the  court  to  be  dissolved,  and  no  longer  visible.^ 
In  case  of  the  dissolution  of  a  religious  society  or 
a  church,  the  records  are  to  be  deposited  with  the 
town  clerk.*  Other  incidents  attending  the  life  and 
dissolution  of  a  religious  society,  may  be  found  in 
the  next  chapter.^ 

1  Proprietors  of  St.  Luke's  v.  Slack,  7  Cush.  230;  Wood  v.  Gushing, 
6  Met.  448;  Howard  v.  Hayward,  10  Met.  408,  and  Federal  Street 
case.  Pew-holders,  not  bond  fide,  but  purchasing  to  effect  an  object, 
are  held  in  light  esteem  by  the  Mollis  Street  Council,  1840. 

2  Oakes  v.  Hill,  14  Pick.  442. 

3  Easterbrooks  v.  Tillinghast,  5  Gray,  17,  1855. 

*  Gen.  Stat.  ch.  29,  §  12.  The  church  or  religious  society,  before  the 
ax;t  of  dissolution,  should  take  care  to  divest  itself  of  all  property. 

^  Also  in  ch.  31,  H  8  and  9.  For  the  extinction  of  the  French 
Protestant  Society  in  1748,  by  sale  of  its  lands  in  School  Street,  Bos- 
ton, see  notice  of  Rev.  Andrew  Le  Mercier,  in  New  England  Genea- 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  135 

logical  Reg.  vol.  xiil.  p.  320.  For  a  protest  against  the  dissolution 
of  a  church  by  a  mutual  council,  with  the  consent  of  a  majority  of 
its  members,  see  Result  of  Howard  Street  Salem  Council,  1849,  sec- 
ond edition.  The  approbation  of  the  Essex  Conference  to  such  a  dis- 
solution is  held  to  add  no  force  to  the  proceedings  of  the  majority  of 
the  church.  Per  Contra,  see  a  "  Review  of  the  Result,"  published  in 
1850.    Dexter  on  Congregationalism,  230. 


CHAPTER  X. 

Meeting-houses  —  Owned  by  the  Parish  —  Title  in  whom  it  vests  —  Town  Houses 
—  Repairing  and  Rebuilding  —  Removing  —  Trespass  on  Meeting-house  and 
grounds. 

§  1.  The  question,  who  owns  the  meeting-house, 
like  other  questions  of  property,  has  been  discussed 
in  our  courts.  In  England,  the  fee  of  the  church 
and  glebe  is  in  the  parson.  The  fee  of  the  burying- 
ground  only  is  in  the  parish.  In  general,  it  may  be 
said,  that  the  meeting-house  in  Massachusetts  is 
owned  by  the  parish  or  religious  society ;  whoever 
holds  the  fee,  holds  it  for  the  use  of  the  parish  or 
religious  society.  The  control  of  the  meeting-house, 
in  general,  follows  the  ownership.^ 

But  this  question  of  ownership  and  control  has 
quahfications  in  the  law,  divisions,  and  distinctions, 
like  the  great  doctrines  preached  in  the  pulpits.  In 
the  days  of  church  and  state,  this  was  a  field  for  the 
nicest  legal  distinctions.  If  the  meeting-house  was 
erected  when  town  and  parish  were  one,  no  such  en- 
tity having  yet  been  carved  out  of  the  town  as  the 
corporation  caUed  the  parish,  even  then  it  was 
of  no  little  legal  consequence  to  whom  the  meeting- 
house belonged.  Just  as  soon  as  the  parish  was 
created  out  of  the  ribs  of   the  town,  forthwith  the 

1  Gay  V.  Baker,  17  Mass.  435.     Attorney  General  v.  Merrimack  Mf. 
Co.  14  Gray,  586. 
(136) 


MASSACHUSETTS  ECCLESIASTICAL   LAW.  13Y 

manly  town  lost  the  meeting-house ;  and  it  went 
over,  with  all  its  adjuncts  {eo  instanti),  to  the  more 
feminine  spiritual  corporation,  the  parish.  In  plain 
English,  the  meeting-house  from  the  first,  with  its 
lands  and  property,  belonged  to  the  town  in  its  paro- 
chial, not  in  its  civil  character.^ 

But  these  general  principles,  applicable  to  terri- 
torial parishes,  are  now  qualified  so  often  by  acts  of 
incorporation  transferring  the  real  and  personal  prop- 
erty to  certain  parties,  by  conveyances  in  trust,  and 
by  other  legal  acts,  as  to  require  investigation  in 
almost  every  case,  to  ascertain  where  the  legal  title 
of  the  meeting-house  resides.  Thus,  in  one  instance, 
the  legal  title  was  held  to  be,  not  in  the  religious 
society,  but  in  the  incorporated  proprietors,  who  were 
tenants  in  common;  although  the  religious  society 
had  taken  charge  of  the  property  for  some  years.^ 
In  case,  however,  the  religious  society  is  organized 
but  not  incorporated,  a  deed  to  the  society  does  not 
thereby  constitute  the  members  tenants  in  common.^ 
Where  two  trustees  hold  lands  for  an  unincorporated 

1  Eager  v.  Marlborough,  10  Mass.  430.  Austin  v.  Thomas,  14  Mass. 
333.  Ludlow  V.  Sikes,  19  Pick.  323.  Tobey  v.  Wareham,  13  Met. 
440.  Newmarket  v.  Smart,  New  Hampshire,  1865,  Town  and  parish 
business  was  transacted  in  the  same  town  meeting  almost  uniformly. 
So  important  a  parish  as  the  First  in  Charlestown  had  no  separate 
organization  for  town  and  parish  business  until  1786.  Probably  New 
Braintree,  in  1847,  was  the  very  last  town  in  the  Commonwealth  to 
adopt  a  parochial  organization,  distinct  from  the  town.  St.  1786,  ch. 
10,  §§  4-5,  embodies  the  law  of  that  time.    Appendix  A. 

^  Howard  v.  Hayward,  10  Met.  408 ;  Bridgewater  v.  Waring,  24 
Pick.  309. 

^Hamblette  v.  Bennett,  6  Allen,  140. 
12* 


138  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

religious  society,  and  one  of  them  abandons  or  mis- 
manages the  trust,  his  associate  does  not  thereby  be- 
come the  sole  legal  trusteed  So  in  case  of  a  surviving 
trustee  by  deed,  the  title  remains  in  him :  it  is  not 
transferred,  without  a  conveyance,  to  new  trustees 
elected  by  the  religious  society.  ^  Where  a  meeting- 
house was  erected  by  the  contribution  of  two  religious 
societies,  on  land  belonging  to  one  of  them,  it  was 
held  to  belong  to  the  society  owning  the  land.^ 

§  2.  If  several  territorial  parishes  were  made  out 
of  one  town,  the  meeting-house,  and  the  land  on 
which  it  stood,  went  to  the  oldest  or  first  parish  in 
the  town ;  not  to  the  town  proper.**  It  has  been  de- 
cided, that  the  meeting-house  is  the  property  of  the 
parish,  so  exclusively  that  the  town  cannot  complain 
if  the  parish  shut  them  out  of  the  use  of  the  meeting- 
house for  municipal  purposes,  such  as  town  meetings, 
celebrating  the  Fourth  of  July,  holding  courts  and 
conventions,  after  the  town  had  been  using  it  nearly 
sixty  years,  as  in  the  case  of  Medford.^  In  the  case 
of  Milford,  the  Court  say  the  town  has  no  right  to 
complain,  if  the  meeting-house,  is  torn  down  by  the 
parish,  and  the  town  is  left  destitute,  after  making 
repairs,  and  using  it  for  municipal  purposes,  for 
seventy  years.  ^     The  vitality  of  the  parish  in  this 

1  Webster  v.  Vandeventer,  6  Gray,  428. 

2  Peabody  v.  Eastern  Methodist  Society,  as  to  trustees,  5  Allen,  540. 
As  to  merger  of  title,  see  Earl  v.  Washburn,  7  Allen,  95  ;  Cammeyer 
V.  Un.  Germ.  Luth.  Chhs.,  2  Sandford's  Ch.  186,  N.  Y.   1844. 

2  Manning  v.  Gloueester,  6  Pick.  6. 

*  Statute  1786,  ch.  10,  §  5.     The  General  Court  in  sonic  instances 
made  an  equal  division  of  property.     See  Wilbraham,  1  78:2. 
6  Medford  v.  Pratt,  1826,  4  Pick.  222. 
«  Milford  V.  Godfrey,  1822,   1  Pick.  97.     Hy  deed,   however,  the  use 


MASSACHUSETTS    ECCLESIASTICAL   LAW.  1?9 

case  is  a  little  remarkable  :  it  was  not  lost  or 
merged  in  the  town  by  a  nonuser  of  five  and  thirty 
years.^ 

It  would  be  unprofitable  to  inquire  how  far  the 
learned  Court  followed,  in  these  decisions,  analogies 
drawn  from  the  English  parochial  law,  or  the  modern 
law  of  husband  and  wife,  with  its  claims  for  divorce 
and  separate  maintenance.  It  is  enough  for  us  to 
know  that  the  law  laid  down  in  the  Milford  and 
Medford  cases  was  intended  to  be  an  application  of 
theories,  that  ran  through  the  church  and  state  policy 
of  the  Commonwealth.  In  1820,  it  had  turned  the 
church  out  of  the  meeting-house  by  the  Dedham  and 
kindred  decisions  ;  and  now  we  find  it,  in  five  short 
years,  turning  the  town  out  of  the  meeting-house. 
But  there  are  compensations  in  all  things  :  the 
Dedham  case,  with  its  hardships,  gave  new  life  and 
energy  to  the  Orthodox  Congregationalists.  To  the 
Medford  and  Milford  decisions,  we  owe  many  com- 
modious town-halls  which  adorn  the  Common- 
may  be  secured  to  the  town,  so  as  to  follow  the  meeting-house,  when 
moved  from  its  original  site.     GofF  v.  Rehoboth,  12  Met.  26. 

1  As  to  the  ownei-ship  of  a  bell  procured  by  subscribers,  which  hung 
for  ten  years  in  the  belfry,  by  consenting  vote  of  the  parish,  the  Court 
decide  that  it  belongs  to  the  subscribers.  Springfield  v.  Root,  18 
Pick.  318.  The  town-clock  presented  to  the  public  is  town  property, 
and  may  be  safely  repaired  by  the  selectmen.  Willard  v.  Newbury- 
port,  12  Pick.  227.  The  entire  nicety  of  town  and  parish  law  is  seen 
in  1826,  in  Woodbury  v.  Hamilton,  6  Pick.  101,  where  the  chief 
justice  intimates  that  a  distinction  may  be  drawn  between  the  fees  of 
the  sexton  for  ringing  the  bell  for  town  purposes  and  for  parish  pur- 
poses. The  control  of  the  bell,  by  English  ecclesiastical  law,  be- 
longs to  the  minister.  Redhead  v.  Wait,  6  Times  Rep.  580.  Horse- 
sheds  are  more  sure  to  develop  church  and  state  law  in  Massachusetts 
than  bells,  as  we  shall  see  in  ch.  12. 


140  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

wealth,  springing  into  life  from  such  stern  judicial 
foundations.^ 

§  3.  While  the  venerable  towns  took  these  decis- 
ions in  good  part,  hardly  inquiring  whether  the 
Court  were  reformers  or  not,  parishes  and  religious 
societies  have  not  slumbered  in  the  quiet  possession 
of  ancient  meeting-houses.  All  obstacles  to  the 
building  of  new  ones  that  could  be  removed  by  leg- 
islation have  been  removed.  All  possible  changes 
in  a  meeting-house  are  anticipated  by  the  exuberant 
statutes  of  later  years,  which  allow  new  meeting- 
houses to  be  built ;  old  ones  to  be  removed,  sold, 
altered,  repaired,  rebuilt,  or  abandoned,  at  the  pleas- 
ure of  the  parish  or  the  proprietors  ;  care  being  taken 
to  obtain  in  advance  the  consent  of  the  parishioners 
or  co-proprietors,  if  it  may  be  had ;  always  offering 
pew-owners  an  indemnity  in  case  the  meeting-house 
is  not  altogether  "  ruinous  and  unfit  for  public  wor- 
ship." 2  It  will  be  noticed  that  subordination  of 
parishioners  and  pew-owners  to  the   general  rights 

1  Since  1830,  quite  a  frroup  of  decisions  has  illustrated  the  law  of 
town-halls  and  town-houses. 

1st.  It  has  been  held,  that,  under  a  vote  "  to  build  a  town-house  or 
provide  one,"  the  materials  of  an  old  meeting-house  may  be  used  in 
building  the  town-house.     Hadsell  v.  Hancock,  3  Gray,  526. 

2d.  In  Frencli  v.  Quinc}^,  3  Allen,  9,  the  meaning  of  the  words, 
"  place  for  a  town-house,"  are  discussed  ;  also,  the  uses  of  town- 
houses. 

3d.  The  authority  of  towns  to  erect  town-houses,  market-houses, 
under  ancient  statutes  and  usages,  which  committed  to  the  town  the 
m:magemcnt  of  their  "  prudential  affairs,"  is  examined  at  large  in 
Sp:iulding  V.  Lowell,  23  Tick.  71,  1839,  and  tlie  cases  there  cited.  See 
also,  Haven  v.  Lowell,  5  Met.  35  ;  George  v.  Mendon,  6  Met.  510. 

2  Gen.  Stat.  ch.  30,  §  3.5-37.  The  danger  of  not  following  plans 
approved   by   the    l)ishop,   arch-doacon,   and    vice    chancellor,    in    the 


MASSACHUSETTS   ECCLESIASTICAL   LAW.  141 

of  the  parish,  is  a  characteristic  of  these  statutes ; 
which  give  no  indemnity  whatever  to  pew-owners 
or  to  proprietors,  where  the  meeting-house  is  taken 
down,  on  account  of  its  permanent  unfitness  for  pub- 
lic worship.^  Otherwise,  if  the  meeting-house  is  tem- 
porarily unfit,  and  does  not  require  entire  demolition.^ 
In  one  instance,  the  Court  have  sanctioned  the 
abandoning  of  a  meeting-house,  fit  for  public  wor- 
ship, without  indemnity  to  a  pew-owner.  The  par- 
ish, in  this  case,  having  decided  to  leave  their  meet- 
ing-house, and  build  in  a  new  part  of  the  town,  a 
pew-owner,  considering  himself  aggrieved,  sued  the 
parish,  and  the  Court  held  it  was  damnum  absque 
injuria ;  for  it  did  not  appear  that  the  parish  acted 
wantonly,  or  with  any  disposition  to  injure  the  pew- 
owner.  His  fellow-worshippers,  said  the  Court,  made 
no  promise,  express  or  implied,  that  they  would  al- 
ways keep  his  company,  and  occupy  the  old  meet- 
ing-house ;  and  each  pew-holder  had  the  same  right 

alteration  of  an  English  church,  is  illustrated  in  the  ease  of  Cardinall 
V.  Molyneux,  4  Times  Rep.  605.  The  danger  of  preaching  in  unli- 
censed chapels,  Jones  v.  Jelf,  8  Times  Rep.  400 ;  Barnes  v.  Shore, 
4  Eccl.  Cases,  593 ;  of  preaching  in  a  parish  against  the  remonstrance 
of  the  incumbent,  Jones  v.  Jelf;  against  the  bishop's  remonstrance, 
Bp.  Down  V.  Miller,  5  Times  Rep,  30. 

1  Daniel  v.  Wood,  1  Pick.  102 ;  Gen.  St.  ch.  30,  §  37. 

2  Howard  v.  First  Parish  N.  Bridgewater,  7  Pick.  138  ;  Gorton  v. 
Hadsell,  9  Cush.  508.  The  law  of  subordination  to  the  general  inter- 
ests has  been  applied  by  the  Court  to  the  grounds  attached  to  the  meet- 
ing-house. One  of  the  proprietors  of  a  meeting-house  in  Bridgewater 
was  prohibited  from  using  such  ground  for  a  caravan,  Bridgewater  v. 
Waring,  24  Pick.  304.  The  subordination  of  a  ladies'  benevolent 
society,  who  had  finished  the  basement  at  their  own  expense,  to  the 
committee  of  the  unincorporated  religious  society,  worshipping  up- 
stairs, is  illustrated  in  Hamblette  v.  Bennette,  6  Allen,  140. 


142  MASSACHUSETTS  ECCLESFASTICAL    LA  W. 

as  himself  to  sue  the  parish.^  It  hardly  needs  to  be 
added,  that,  in  the  building  of  new  meeting-houses 
and  the  repairing  of  old  ones,  the  religious  society, 
the  committee,  and  the  contractors  are  liable  to 
whatever  misapprehensions  are  incident  to  other 
verbal  and  written  contracts  ;  together  with  some 
peculiar  to  the  subject-matter.^ 

§  4.  We  have  laws  putting  a  certain  sanctity 
on  the  meeting-house  and  its  precincts,  the  burial- 
ground,  and  the  vestry-room,  as  in  England.  Our 
courts  punish  according  to  the  aggravation  of  the 
offence,  and  their  own  sense  of  propriety,  within 
the  limits  of  the  statute.^  In  the  early  statutes  of 
the  Colony,  we  trace  the  effects   of  English  ecciesi- 

1  Fassett  v.  Boylston,  19  Pick.  361, 1837.  Eastman  v.  Wright,  6  Pick. 
316,  1828,  illustrates  the  difficulty  of  suits  at  law  between  pew-holders. 
For  leave  to  sell  the  meeting-house  of  the  Meth.  Epis.  Ch.,  Ipswich, 
and  distribute  the  proceeds,  after  paying  debts,  among  the  pew-holders, 
according  to  the  valuation,  see  House  Doc.  60,  1862.  As  to  the  control 
of  meeting-houses  by  the  Meth.  Epis.  Conference,  see  Guild  v.  Richards, 
16  Gray,  1860. 

2  a.  Builders  having  to  do  with  the  building  committee  of  a  parish 
divided  about  building  the  meeting-house  "on  the  hill  or  on  the  flat," 
will  consult  to  advantage  Damon  v.  Granby,  2  Pick.'  345,  as  to  the 
power  of  the  committee  ;  who  are  allowed  to  act  by  their  majority. 

b.  From  Simonds  v.  Heard,  23  Pick.  120,  it  may  be  inferred  that 
the  builders,  under  some  circumstances,  can  hold  the  committee  liable 
in  the  first  instance ;  next  the  town  or  parish. 

c.  How  slight  the  acts  of  ratification  may  be,  on  the  part  of  a  cor- 
poration or  9Mas/ corporation  (without  a  vote),  maybe  seen  in  Hayward 
V.  Pilgrim  Society,  21  Pick.  275,  where  a  vote  to  accept  the  report  of  a 
committee  was  held  a  ratification  of  the  doings  of  the  committee. 

8  Gen.  St.  ch.  161,  §  67.  As  to  disturbing  religious  worship,  camp- 
meetings,  and  funerals,  see  Gen.  St.  ch.  165,  §  20  to  25  ;  Common- 
wealth V.  Symonds,  2  Mass.  1 63  ;  Commonwealth  v.  Porter,  1  Gray, 
476. 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  143 

astical  laws  against  "  brawling,  smiting,  quarrelling, 
and  chiding  by  minister  or  people,"  in  these  sacred 
places.  We  concur  naturally  with  English  judges, 
who  lay  it  down  as  law,  "that  no  rectitude  of 
intention,  no  accuracy  of  judgment,  no  provocation 
even,  can  excuse  a  man  for  brawling  in  church 
or  vestry."  There  is  enough  of  the  Englishman 
still  left  in  any  Massachusetts  man  to  be  willing, 
for  example,  to  see  "the  hat  pulled  off  the  head 
of  the  man  who  obstinately  refuses  to  take  it  off  in 
church,"  or  the  unruly  urchin  "  whipped  on  the  spot 
for  playing  therein."  ^ 

1  Brawling,  Waddilove's  Digest ;  Burns'  Ecclesiastical  Law ;  King 
V.  Ropier,  3  Times  Rep.  159;  Freeland  v.  Neal,  6  Eccl.  Cases,  252; 
Law  Mag.  and  Rev.  viii.  342.  As  to  Ventilation,  see  Cong.  Quarterly, 
July  and  Oct.  1859  ;  Repertory,  1853,  121.  As  to  Architecture  of  Meet- 
ing-houses, see  Cong.  Quar.  Oct.  1859,  Jan.  1862;  Repertory,  185.% 
625. 


CHAPTER    XI. 

Pews  —  At  Common  Law  —  Qualified  Ownership  —  Exempt  from  Attachment  — 
Control  of  Pews  by  Religious  Society  —  Taxing  Pews  —  Exclusive  Rights  of  Pew- 
Owners. 

§  1.  The  English  common  law  of  pews  was 
very  simple  and  absolute.  As  for  personal  property 
in  seats,  the  law  knows  no  such  thing.  It  is  a  wild 
conceit,  "that  there  can  be  such  use  made  of  pews  as 
of  villas  and  other  common  property."  "  They  be- 
long to  the  parish,  for  the  use  of  the  inhabitants  of 
the  parish,  who  have  a  right  to  use  them  without 
paying  for  them ; "  and  they  cannot  be  sold  or  let 
without  act  of  Parliament.^  The  bishop,  as  head  of 
the  diocese,  had  a  right,  by  prescription,  to  a  seat  in 
the  chancel ;  and  so,  by  prescription,  some  persons 
of  great  quality  among  the  parishioners  had  seats 
in  the  nave,  because  they  had  helped  build  the  nave  ; 
others  had  seats  by  "faculty,"  that  is,  by  assign- 
ment of  the  church-wardens,  with  the  rector's  as- 
sent, so  long  only,  however,  as  they  remained  in  the 
parish.^  The  prescription  must  be  long  to  entitle  a 
party  to  bring  a  suit  in  the  English  ecclesiastical 
courts  for  "  Perturbation  of  seats  ; "  and  the  repairs 
that  would  help  to  prove  a  man  owner  of  a  pew  were 
not  slight  repairs,  "  such  as  putting  in  new  cushions, 

1  Haggard,  1.  317. 
'^  Burns'  Eccl.  Law,  1.  358. 
(144) 


MASSACHUSETTS   ECCLESIASTICAL   LAW.  145 

linings,  and  stools,"  say  the  English  judges.  But 
usage,  and  the  practice  of  assigning  certain  seats 
to  the  inhabitants  of  certain  mansion  houses,  to- 
gether with  acts  of  Parliament,  have  modified  the 
law  of  England  in  this  regard.' 

§  2.  In  Massachusetts,  at  first,  seats  were  annually 
allotted,  according  to  the  rank  and  quality  of  the 
parishioners,  after  the  venerable  English  style  of 
giving  them  out  by  "  faculty."  Afterwards,  they 
were  held  by  the  law  as  real  estate  in  the  country, 
and  personal  estate  in  the  city  of  Boston.  Now, 
throughout  the  Commonwealth,  pews  are  all  per- 
sonal property .2  The  courts  say,  however,  that  the 
owner  has  no  such  absolute  right  as  he  has  in  his 
farm,  extending  from  the  centre  of  the  earth  to  the 
zenith ;  but  a  qualified  right,  or  easement,  subject  to 
the  more  general  right  of  the  religious  society,  or 
the  parish,  or  whoever  may  be  the  absolute  owner 
of  the  meeting-house.-^  The  subordination  of  the 
pew-owner  in  a  territorial  parish  to  the  general  rights 
of  the  parish,  in  regard  to  electing  the  minister,  has 
been  examined.'* 

The  mixed  nature  of  pew  property  appears  in  spite 
of  statutes  of  1796  and    1799,  making  pews  real 

^  The  English  law  as  to  pews  seems  to  have  changed  but  little  in 
some  houses  of  worship.  For  an  exposition  of  the  rights  of  parishioners 
in  1863,  in  pews,  aisles,  galleries,  faculty,  and  allocation,  see  St. 
Colomb.,  8  Law  Times  Rep.  861.  A  return  to  free  seats  is  urged  in  the 
Church  Rev.  8,  9,  13.  As  to  monopoly  of  proxies  of  pew-holders, 
see  Trinity  Church,  Boston,  1845. 

2  St.  1855,  ch.  122  ;  Gen.  St.  ch.  30,  §  38.    Appendix  C 

3  Gay  V.  Baker,  17  Mass.  435. 

*  Wood  V.  Gushing,  6  Met.  448. 
13 


146  MASSACHUSETTS  ECCLESIASTICAL   LAW. 

estate  out  of  Boston,  and  personal  in  the  city.  In 
discussing  the  title  to  Governor  Hancock's  pew,  so 
late  as  1840,  the  terms  warranty,  quiet  enjoyment, 
adverse  possession,  are  freely  used.^ 

Such  is  the  legal  tie  between  the  pulpit  and  the 
pews,  that  a  pulpit  cannot  be  levied  on  by  the 
sheriff  and  removed  apart  from  the  pew^s.^ 

§  3.  Pews  have  a  dignity  of  their  own,  and  are 
ranked  among  the  necessaries  of  life.  Along  with 
the  meeting-house  and  its  furniture,  the  pew  is  ex- 
empt from  the  property  tax  due  to  the  state ;  so 
indispensable  is  a  pew  occupied  by  a  debtor  or  his 
family  deemed,  that  the  law  protects  it  from  attach- 
ment and  sale  on  execution,  along  with  the  poor 
man's  Bible,  wearing  apparel,  the  implements  of  his 
trade,  his  cooking-stove,  and  his  cow.^ 

The  rights  of  pew-owners  have  been  touched 
upon  in  the  ninth  and  tenth  chapters  in  connection 
with  religious  societies  and  meeting-houses.  Special 
acts  of  incorporation  were  granted  after  the  Revo- 
tion,  allowing  pews  to  be  taxed  on  a  valuation,  for 

1  Proprietors  of  Brattle  St.  v.  Bullard,  2  Met.  363.  See  also  Quincj 
V.  Spear,  15  Pick.  146. 

2  Hcvere  v.  Gannett,  1  Pick.  169. 

3  Gen.  St.  ch.  11,  §  5  ;  ch.  133,  §  32  ;  St.  186.5,  ch.  206.  The  sale  of 
a  pew  by  the  treasurer  for  non-payment  of  taxes  clue  the  proprietors 
of  a  meetinj^-house,  erected  before  St.  1845,  ch.  213,  examined;  the 
preliminaries  to  a  valid  assessment  under  St.  1852,  ch.  319,  described; 
Gen.  St.  ch.  30,  §  32,  33  ;  Newbury  v.  Dow,  3  Allen,  369. 

The  proper  construction  of  Sts.  1795,  ch.  53,  1822,  ch.  93,  and  1831, 
ch.  59,  in  regard  to  recording  deeds,  mortgages,  attaclimcnts,  and  exe- 
cutions on  surplus  pews,  examined  in  Sargent  v.  Pierce,  2  Met.  80. 
Since  1852,  pews  are  personal  property,  and  governed  by  the  laws  of 
personalty  in  these  respects. 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  147 

the  support  of  public  worship.  The  proprietors  of 
Salem  Tabernacle,  by  St.  1781,  ch.  13,  are  allowed 
to  let  and  finally  sell  pews,  in  case  the  taxes  upon 
them  are  not  paid.  Brookline  First  Parish,  St.  1834, 
ch.  140,  is  one  of  the  best  considered  of  the  acts 
of  incorporation,  the  interval  being  filled  by  a  large 
number  of  special  acts,  with  minute  directions,  in- 
tended to  secure  a  fair  valuation  of  the  pews. 
General  provisions  to  accomplish  the  same  pur- 
pose may  be  found  in  Sts.  1817,  ch.  189,  allowing 
all  proprietors  of  meeting-houses  to  regulate  their 
affairs  and  tax  their  pews  ;  but  the  taxing  of 
pews  was  not  perfected  until  Sts.  1845,  ch.  213, 
and  1852,  ch.  319,  were  passed,  which  since  have 
been  merged  in  the  Gen.  Sts.  of  1860,  ch.  30.^ 

The  more  exclusive  rights  of  pew-owners  are 
sometimes  discussed  in  connection  with  the  right 
of  the  parish  to  use  the  meeting-house  for  purposes 
not  strictly  religious.  How  absolutely,  how  ungra- 
ciously, a  pew-owner  may  exercise  his  rights,  can 
be  learned  from  a  judicial  report  embalming  a  curious 
specimen  of  manners  which  we  are  not  obliged  to  imi- 
tate. The  owner  of  a  pew,  not  wishing  to  have  it  used 
on  the  Fourth  of  July,  screwed  cleats  on  the  inside 
of  the  door,  also  across  the  top  of  the  pew  ;  then 
floored  over  the  top  with  boards,  which  boards  he 
painted,  and  put  up  a  notice  forbidding  any  person 
to  meddle.  The  committee  of  arrangements  took 
down  these  structures  :   the  owner  sued  them,  and 


1  The  leading  cases  are  Mussey  v.  Bulfinch  St.  1  Cush.  148.     New- 
bury V.  Dow,  3  Allen,  369. 


148  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

recovered  damages  for  trespass.  Chief  Justice 
Shaw,  in  1842,  giving  the  decision  in  this  ex- 
treme case  (which  turned  on  the  peculiar  by-laws 
and  constitution  of  this  religious  society),  in  fa- 
vor of  the  pew-owner,  remarked,  that  it  did  not 
settle  the  question  of  the  right,  in  ordinary  cases,  to 
grant  the  use  of  meeting-houses  to  the  exclusion 
of  pew-owners  ;  and  the  Court  avoided  giving  a  de- 
cision on  that  point,  feeling,  as  the  venerable  chief 
justice  happily  expresses  it,  "  that  it  is  more  for  the 
harmony  and  well-being  of  society,  that  the  practice 
should  stand  on  considerations  of  urbanity  and  cour- 
tesy, than  to  discuss  the  question  of  strict  law."  ^ 

^  Jackson  v.  Rounseville,  5  Met.  127.  In  other  States,  decisions  of 
Massachusetts,  in  regard  to  pews,  are  quoted  with  approbation.  See 
Voorhees  v.  Presbyterian  Church  of  Amsterdam,  17  Barbour,  N.  Y. 
The  subordination  of  trustees  to  the  session,  in  case  of  conflict  aa 
to  the  use  of  a  Presbyterian  church,  is  insisted  upon.  Repertory,  1 863, 
494,  and  Presb.  Ch.  v.  Andruss,  1  Zabriskie,  328,  1848. 


CHAPTER    XII. 

The  Precincts  of  the  Meeting-house  —  Tovni  and  Parish  Conflicts,  as  to  Training- 
fields,  Commons,  and  Horse-sheds  —  Shrewsbury,  Ludlow,  Medford,  Reading, 
Pepperell  —  The  Burial-ground  —  Care  of  it,  taken  by  Shrewsbury,  by  An- 
dover.  —  Burial-rights. 

§  1.  To  understand  this  chapter,  it  is  desirable  to 
have  a  description  of  the  formation  of  towns  more 
full  and  complete  than  we  have  attempted  hereto- 
fore. It  may  be  said  with  truth,  that  in  the  towns  of 
Massachusetts,  —  equivalent  in  some  respects  to  the 
parishes  into  which  all  England  was  divided  long 
before  the  Reformation,  —  we  shall  find  the  be- 
ginning, middle^  and  end  of  our  ecclesiastical  law. 
For  an  account  of  the  formation  of  a  Massachu- 
setts town,  we  avail  ourselves  of  materials  furnished 
by  an  actual  case  in  court,  in  which  Chief  Justice 
Sha\y  gave  an  opinion  in  1833.  Shrewsbury  will 
answer  for  many  towns  in  the  Commonwealth, 
settled  before  the  Revolution.^ 

On  the  petition  of  John  Bingham  and  thirty  oth- 
ers, the  General  Court,  in  the  year  1717,  appoint 
a  committee  with  power  to  grant  and  lay  out  the 
whole  of  the  lands  of  the  township  to  such  persons 
"  as  the  committee,  in  their  wisdom,  think  most 
likely  to  advance  the  settlement  of  the  place,  pro- 
vided the  committee,  within  three  years,  have  there 

1  Shrewsbury  v.  Smith,  14  Pick.  297. 

13*  (149) 


150         MASSACHUSETTS    ECCLESIASTICAL   LAW. 

at  least  forty  families,  with  an  Orthodox  minister." 
Also  provided  a  lot  as  large  as  may  be  convenient, 
in  their  judgment,  be  laid  out  to  the  "  first  settled 
minister ; "  also  a  lot  "  for  the  ministry,  and  another 
for  the  use  of  schools."  ^  With  modifications,  this 
was  the  provident,  careful  method  of  founding  towns 
very  early  adopted.^ 

In  less  than  three  years,  the  proprietors  of  Shrews- 
bury vote  to  build  a  meeting-house,  and  that  "  the 
place  for  it  be  on  Rocky  Plain,  near  the  pines,  and 
if  that  could  not  be  obtained  on  reasonable  terms, 
then  that  it  be  set  on  Meeting-house  Hill."  The 
committee  of  five,  to  manage  about  the  meeting- 
house, procured  from  Wm.  Taylor,  "  fifteen  acres  on 
Rocky  Plain,"  for  which   the  proprietors   gave  him, 

^  In  1741,  in  the  case  of  Lanesboro',  greater  exactness  was  used. 
On  the  application  of  seventy-six  persons,  the  General  Court,  to  secure 
fairness  ail  around,  and  prevent  speculation,  divided  the  township  into 
seventy-nine  shares,  always  reserving,  however,  one  for  the  first  settled 
minister,  one  for  the  ministry,  and  one  for  schools.  Humphrey  v. 
Whitney,  3  Pick.  1.37  ;  Lanesboro'  v.  Curtis,  22  Pick.  320. 

2  In  the  early  settlement  of  the  country,  many  towns  were  not 
formally  incorporated,  but  have  been  recognized  since  a^owns.  "Some- 
times the  naming  was  a  virtual  incorporation.  See  Commonwealth  v. 
Roxbury,  9  Gray.     Also  Statistical  Association,  vol.  1. 

At  the  first,  the  boundaries  of  towns  were  very  large.  CharlestoA^ii 
included  Maiden,  Woburn,  Stoneham,  Burlington,  Somcrville,  parts  of 
Cambridge,  West  Cambridge,  and  Reading.  Dorchester,  says  Mr. 
Savage,  extended  to  Plymouth  line ;  but  later  the  bounds  were  re- 
stricted to  x-'ight  miles  from  the  meeting-house. 

To  the  Committee  of  the  General  Court,  we  owe  the  size  of  farms 
and  direction  of  roads  in  Massachusetts.  See  Jackson's  Newton, 
Frothingham's  Charlestowm. 

For  the  area  of  towns  in  1830,  '40,  '50,  see  Senate  Doc.  51,  1854. 
In  1838,  there  remained  eight  unincorporated  gores  or  districts.  Sen- 
ate Doc.  12.  1838. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  151 

by  vote,  "  five  acres  and  twenty -four  rods  "  elsewhere. 
This  characteristic  exchange  they  were  entitled  to 
make  by  the  ordinance  of  1636,  which  authorized 
"the  freemen  of  every  town,  or  the  major  part,  to 
dispose  of  their  lands  and  woods,  and  to  grant  lots." 
All  that  was  required  to  make  such  conveyance  was 
a  vote :  no  deed,  seal,  or  consideration  were  nec- 
essary.!^ On  these  fifteen  acres,  called  the  meeting- 
house lot,  which  was  always  "  open,  unfenced,  in- 
tersected by  ways  leading  to  the  burial-ground,  and 
two  highways,"  Shrewsbury  meeting-house  stood 
until  1766,  when  it  was  voted  to  rebuild  it,  and  "  look 
up  the  bounds  of  the  meeting-house  lot  to  see  how 
much  it  was  proper  to  sell."  While  Shrewsbury 
town  and  parish  were  all  one,  the  town  could  make 
the  appropriation  of  such  surplus  land  from  parish 
to  municipal  purposes.  The  appropriation,  how- 
ever, once  fairly  made  to  parochial  purposes  is  in 
the  nature  of  a  grant,  which  cannot  be  revoked 
when  town  and   parish  become  separate.^ 

If  the  old  towns  had  been  less  in  the  habit  of 
"  looking  up  the  bounds  of  the  meeting-house  lot  to 
see  what  was  proper  to  sell,"  the  allowance  of  pub- 
lic grounds  in  the  heart  of  Massachusetts  towns 
would  be  more  ample  in  our  day.  As  it  is,  we  owe 
to  the  "  meeting-house  lot "  nearly  all  we  have  of 
common,  green,  public  square,  training-field,  and 
muster-field,  in  the  various  towns  of  the  Common- 
wealth.    According  to  the  custom  of  the  country, 

1  Batchelder  v.  Wakefield,  8  Cush.  247. 

'^  Lakin  v.  Ames,  10  Cush.  189.     Boothbay  v.  Wylie,  43  Maine, 
387. 


152  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

the  church  in  Shrewsbury  was  organized  before  the 
town ;  the  original  church  members  coming  chiefly 
from  Marlboro'.  The  township  was  organized  as 
a  town  in  1727  ;  and,  in  1743,  a  new  parish  was 
organized  in  Boylston,  a  part  of  the  territory  of 
Shrewsbury.- 

The  creation  of  this  new  parish  made  new  ad- 
justments necessary.  The  rest  of  the  old  town 
of  Shrewsbury  became  by  statute  the  first  par- 
ish of  Shrewsbury,  which  took  the  parochial  prop- 
erty.2  We  have  seen  already  how  some  of  these 
new  relations  between  town  and  parish  were  ad- 
justed by  the  ecclesiastical  law.  Without  con- 
fusion, the  ownership  and  control  of  the  meeting- 
house was  conceded  by  the  town  to  the  parish ; 
the  personal  property  of  the  parish  was  gener- 
ally given  up  by  the  town  without  resistance ; 
only  here  and  there,  suits  were  brought  to  try  the 
title  between  town  and  parish  to  notes  given  for 
ministerial  and  other  lots  of  land."^ 

§  2.  It  was  on  questions  in  regard  to  the  town's 
title  to  lands  in  the  immediate  vicinity  of  the  meet- 
ing-house, —  lands  that  had  been  used  by  town  and 
parish  alike,  —  that  the  venerable  towns,  driven  by  the 

1  The  Kev.  Jol)  Gushing  was  settled  at  the  organization  of  the 
church  in  Shrewsbury,  Dec.  4,  1723.  The  Rev.  Ebenezer  Morse  in 
Boylston,  Oct.  26,  1743.  In  1861,  the  number  of  churches  is  491  ; 
all  but  twenty-six  of  the  towns  of  Massachusetts  being  supplied  with 
Orthodox  Congregational  Societies,  showing  yet  something  of  the  an- 
cient spirit. 

■^  St.  1718,  ch.  6.     St.  1786,  ch.  10.     Minot  v.  Curtis,  7  Mass.  441. 

8  Ludlow  V.  Sikes,  19  Pick.  323.  As  early  as  1801,  trustees  were 
incorporated  to  manage  the  ministerial  fund  in  Sln-ewsbury. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  153 

courts  out  of  the  meeting-house,  took  their  final 
stand,  and  fought  their  last  battle  with  no  mean 
tenacity.  The  suits,  furnished  by  this  last  remnant 
of  church  and  state  law,  are  decided  upon  gen- 
eral principles,  briefly  as  follows.  To  wit :  that 
the  common,  from  its  nature  and  general  uses,  is 
town  property,  yet  the  parish  has  rights  of  con- 
venient access  to  the  meeting-house,  burial-grounds, 
and  horse-sheds,  over  the  common ;  that  the  parish 
has  an  absolute  right  to  the  land  on  which  the 
meeting-house  stands,  and  the  land  reasonably  ap- 
purtenant thereto ;  that  in  general  the  parish  is  a 
public  corporation  quite  as  old,  as  valuable,  and  as 
tenacious  of  life,  as  the  town  itself ;  that  it  is  not  to 
be  deprived  of  its  lawful  property  once  acquired,  by 
any  use  which  it  may  permit  the  town,  or  an  indi- 
vidual claiming  under  the  town,  to  enjoy,  for  a  series 
of  years.  As  for  details  of  the  numerous  suits,  in 
which  these  principles  are  stated  and  applied,  you 
would  not  thank  me  for  analyzing  them  :  they  would 
be  dry  to  the  last  degree,  even  to  an  antiquary.^ 
Much  money  has  been  expended,  and  more  pa- 
tience of  learned  judges,  in  settling  cases  for  Reho- 
both,  Maiden,  Reading,  Milton,  Ludlow,  Medford, 
Pepperell,  and  Essex  on  these  general  principles.  The 
Court,  aided  by  recollections  of  aged  men  as  to 
boundaries,  and  vague  votes  of  town  meetings, 
taking  vigorous  hold  on  presumptions,  have  come  to 
the  practical  conclusions  following :  — 

1  Bachelder  v.  Wakefield,  8  Cush.  249.  Lakin  v.  Ames,  10  Cush. 
198,  and  cases  cited.  Woburn  v.  Co.  Commissioners,  7  Gray,  106. 
Inh.  Essex  v.  Low,  5  Allen,  595. 


154  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

First.  That  the  town  of  INIilton  could  not  efface 
from  a  tract  of  land  the  parochial  traits  which 
were  affixed  to  it  by  a  vote  of  proprietors  in  1659. 
But  the  parish  of  Milton  took  the  land  at  the  end 
of  nearly  two  hundred  years  as  its  own  property. 
Much  more,  if  the  parish  takes  the  land  by  deed 
originally,  as  in  the  case  of  Essex,  although  the 
land  may  have  been  sometimes  used  for  municipal 
purposes,  in  the  long  interval.^ 

Second.  That  the  town  of  Ludlow,  on  a  separa- 
tion of  town  and  parish  in  1835,  was  bound  to  give 
up  notes  having  a  parochial  character,  as  well  as 
parochial  lands. 

Third.  In  the  Medford  contests,  it  was  estab- 
lished that  schools  are  property  of  a  municipal 
character,  and  horse-sheds  parochial.  To  individ- 
uals, there  have  been  solemn  appKcations  of  these 
principles.  It  has  been  settled  that  Mr.  Smith, 
without  license  of  town  or  parish,  could  not  plough 
up  Shrewsbury  Common.  That  Mr.  Bachelder, 
when  requested,  must  move  his  horse-shed,  so  as 
to  accommodate  the  meeting-house,  though  he  had 
been  allowed  by  the  parish  to  keep  the  shed  in 
one  spot  for  thirty  years.  It  has  also  been  de- 
cided that  Mrs.  Ames  might  have  the  horse-shed 
of  the  parish  of  Pepperell  torn  down,  which  stood 
in  front  of  her  family  tomb,  though  the  shed  was 
appurtenant  to  the  meeting-house.  Acting  under 
a  license  from  Pepperell  town,  Mrs.  Atnes  was  ex- 
cused for  this  apparent  trespass  on  parish  property. 

1  Inhabitants  of  Milton  v.  First  Cong.  Parisli,  10  Pick.  447,  1830; 
Inliab.  of  Essex  v.  Low,  5  Allen,  595.  But  a  parish  may  lose  its  land  by 
disseisin  and  merger.     Rehoboth  v.  Carpenter,  23  Pick.  131,  1839. 


MASSACHUSETTS   ECCLESIASTICAL   LAW.  155 

These  illustrations  are  enough  to  convince  the 
reader  of  the  great  difficulty  of  always  rendering  to 
Caesar  the  things  that  belong  to  him,  amid  the  heap 
and  rubbish  of  parish  testimony.^ 

§  3.  We  have  spoken  of  these  disputed  claims 
of  town  and  parish  arising  under  the  old  ecclesias- 
tical system,  as  if  they  belonged  to  an  obsolete 
branch  of  Massachusetts  law.  But  really  it  is  not  so 
In  some  of  the  older  towns  of  the  Commonwealth 
there  may  be  materials  for  these  distressing  suits. 
How  little  it  takes  to  set  one  of  them  in  motion, 
we  will  describe,  and  thus  close  what  we  have  to 
say  in  this  connection. 

In  the  town  of  Pepperell,  in  the  year  1850,  a  be- 
reaved mother  requests  her  son  to  prepare  the  family 
tomb  to  receive  the  remains  of  his  brother.  In 
executing  the  pious  errand,  the  son  removes  a 
horse-shed  which  the  First  Parish  of  Pepperell  had 
erected,  close  to  the  outer  wall  of  the  burial-ground, 
directly  in  front  of  the  door  of  the  family  tomb.  The 
son,  thereupon,  is  sued  as  a  trespasser,  who,  with 
force  and  arms,  had  invaded  the  sacred  rights  of  the 
First  Parish  of  Pepperell.  Thereupon  follows  a  legal 
examination  of  the  respective  rights  of  the  Town  of 
Pepperell  and  the  First  Parish  of  Pepperell  to  the  land 
in,  under,  and  around  the  burial-ground,  the  horse- 

1  In  Maine,  the  same  doctrines  have  been  enforced  by  the  courts. 
Boothbay  v.  Wylie,  43  Maine,  387  ;  and  cases  there  cited.  The  inter- 
mittent exercise  of  parish  functions  by  a  town  is  illustrated  in  Bucks- 
port  V.  SpofFord,  3  Faii-fleld,  487.  The  Canada  Clergy  Reserves,  the 
Vermont  Church  Lands  (4  Church  Review,  580),  the  New  York  Trin- 
ity Church  cases,  and  the  Reformed  Dutch  Church  cases,  are  proofs  of 
the  long  life  of  church  land  claims. 


156  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

shed,  the  engine-house,  the  common,  the  gun-house, 
and  the  hearse-house,  —  rights  hardly  brought  into 
notice  since  Pepperell  was  separated  from  Groton 
and  became  a  parish,  more  than  a  hundred  years  ago. 
These  related  rights  of  town  and  parish,  thus  slum- 
bering together,  like  the  various  Parkers,  Shattucks, 
Bloods,  Prescotts,  and  Jewetts,  in  peaceful  contact 
in  the  burial-ground  hard  by,  without  prospect  of  a 
speedy,  much  less  of  an  angry,  resurrection,  are  sud- 
denly called  into  legal  life  and  open  judgment,  by  the 
simple  command  of  a  mother  to  prepare  the  family 
tomb  for  the  burial  of  her  son.  Whatever  further 
materials  are  remaining,  in  the  old  towns  of  the 
Commonwealth,  for  these  unwieldy  suits,  it  is  to  be 
hoped  they  may  not  appear  in  the  courts  ;  for  judges 
have  reason  enough  already  to  regret,  above  all  men, 
the  ancient  union  between  church  and  state  in 
Massachusetts.^ 

§  4.  The  grave  application  of  remnants  of  eccle- 
siastical law  to  cases  relating  to  training-fields  and 
horse-sheds,  in  our  day,  may  provoke  a  smile  ;  but 
we  cannot  take  leave  of  the  subject  without  admira- 
tion for  the  piety  and  sagacity  of  the  early  founders 
of  Massachusetts  towns.  There  is  something  touch- 
ing, as  we  read  over  the  warlike  enactments  of  1775, 
amid  the  fearful  preparations  for  a  great  combat, 
to  find  elaborate  and  careful  acts  of  the  General 
Court,  incorporating  towns  as  they  had  always  been 
incorporated,  "  provided   they    had   meeting-houses, 

1  Lakin  v.  Ames,  10  Cush.  198.  West  Cambridge  Religious  So- 
ciety, 1856,  eh.  183,  obtained  an  act  allowing  them  to  fence  their  land, 
which  was  intersected  by  roads,  and  obstructed  by  horse-sheds. 


MASSACHUSETTS    ECCLESIASTICAL   LAW.  157 

and  supported  learned  and  pious  ministers  a  d 
schools."  These  founders  of  towns  on  a  godly- 
basis,  we  place  before  builders  of  cathedrals  in  all 
ages.  Our  venerable  fathers  adjourned  from  Eng- 
land to  America,  to  found  in  Massachusetts  towns 
republican  models  for  states,  thereby  carrying  for- 
ward to  noble  issues  a  reformation  in  church  and 
state,  which,  after  a  trial  of  two  hundred  years, 
adapts  itself  to  the  wants  of  a  family  of  common- 
wealths.^ 

§  5.  From  the  precincts  of  a  Massachusetts  meet- 
ing-house we  are  tempted  to  look  at  the  world  at 
large.  We  return  to  the  last  topic  of  our  chapter. 
The  burial-ground  in  Massachusetts  generally  be- 
longs to  the  town,  and,  by  statute,  towns  are  allowed 
the  charge  of  it.^  It  was  commonly  a  part  of  the 
"  meeting-house  lot."  There  are  instances  where  the 
burial-ground  belongs  to  the  parish  or  religious 
society  rather  than  the  town,  by  reason  of  the  original 
grant  or  deed  being  made  to  the  parish,  or  the  pre- 
cinct, which  is  the  equivalent  of  a  parish.'^ 

To  whomsoever  this  sacred  inclosure  belongs  by 
the  law,  it  is  very  certain  that  neither  town  nor 
parish  derive  credit  from  its  neglect.  The  burial- 
ground,  "  God's  acre,"  is  beginning  to  receive  better 
attention  in  our  day.  The  general  statutes  authorize 
religious  societies  "  to   tax   their  members   for   the 

1  That  reforms  in  church  and  state  were  carried  on  to  great  disad- 
vantage in  England,  see  Punchard's  History  of  Congregationalism, 
2d  ed.  passim. 

2  Gen.  Sts.  ch.  18.  §  10;    Lakin  v.  Ames,  10  Cush.  198. 

3  Sudbury  v.  Jones,  8  Cush.  184;  Stearns  r.  Woodbury,  10  Met. 
27. 

14 


158  MASSACHUSETTS  ECCLESIASTICAL  LAW. 

purchase  and  preservation  "  of  burial-groundsJ 
Numerous  associations  are  incorporated  to  take 
charge  of  ample  and  ornamental  grounds.^  It  may 
add  to  the  diligence  of  guardians  of  older  and  more 
narrow  enclosures  attached  to  meeting-houses  to 
know  that  the  ecclesiastical  law  of  England  pro- 
nounced the  greater  excommunication  "  against  pro- 
fane men,  who,  mistaking  their  own  power  and  the 
bounds  thereof,  marred  or  cut  down  the  trees  in  the 
burial-ground,"  affectionately  styling  such  trees  "  the 
goods  of  the  church."  -^  If  the  old  statute,  "  Circum- 
specie  ag-itis,^^  do  not  move  them  to  care  for  trees, 
a  word  from  my  Lord  Coke,  in  regard  to  fences,  will 
not  come  amiss.  After  laying  down  the  law  that 
burial-grounds  belong  to  the  parish,  "  because  the 
more  common  sort  of  people  are  buried  there,"  he 
insists  that  the  fences  should  be  kept  in  good  repair, 
"  in  order  to  protect  the  burials  of  those  whose  bodies 
were,  or  might  have  been,"  he  cautiously  adds, 
"  during  their  lives  the  temples  of  the  Holy  Ghost."  * 
In  early  times,  these  obligations  to  the  pious  dead 
(or  those  who  might  have  been  pious,  if  they  had  so 
chosen)  were  discharged  by  vote  of  town  meeting, 

1  Gen.  Sts.  ch.  30,  §  20.   Appendix  C. 

*  Gen.  Sts.  ch.  28.  Appendix  D,  By  St.  1856,  ch.  84,  West  Parish 
of  Newbury,  alive  to  matters  of  taste  and  improvement,  obtain  leave 
to  convey  their  burial-ground  to  an  association. 

The  power  of  towns,  under  health  laws,  to  regulate  burials,  is  exam- 
ined, Austin  r.  Murray,  16  Pick.  21  ;  Commonwealth  v.  Fahey,  5 
Cush.  408.  See,  on  burial,  31  Examiner,  137,  281  ;  on  ccmcteiies, 
N.  Englandcr,  18G3,  Oct.,  597 ;  on  funeral  customs  of  Connecticut, 
1827,  9  Monthly  Spectator,  118. 

'  Burns'  Eccl.  Law. 

*  2  Inst.  489. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  159 

"  to  see  about  fencing  and  clearing  the  meeting-house 
lands ;  or  to  see  about  allowing  the  inhabitants  to  cut 
the  brush  that  grew  about  the  yard  ;  or  to  clear  away 
the  brush  at  the  west  end  of  the  burying-ground, 
and  also  the  birches  and  poplars  at  the  north  end  of 
the  burying-ground."  ^  The  town  of  Andover  went 
farther  than  this :  it  tenderly  prohibited  the  pastur- 
ing of  "  large  cattle  "  in  the  burying-ground,  con- 
fining the  privilege  to  "  sheep  and  calves."  But, 
in  our  days,  a  vote  in  town  meeting  to  cut  the 
brush  in  the  burial-ground,  and  to  keep  the  oxen 
out,  will  hardly  pass  for  a  sufficiently  delicate  at- 
tention to  the  memory  of  our  departed  towns- 
men, whether  they  have  died  in  the  faith  or 
not.2 

We  have  circumspecte  agitis  embodied  in  §  12  of 
ch.  28  of  our  Gen.  Sts.  Under  it,  the  Court  held  that 
the  owner  of  the  fee  of  an  ancient  burial-ground  can- 
not now  cut  off  the  trees  for  his  own  use,  without  au- 
thority, although  his  ancestors  may  have  always 
treated  the  land  as  their  own.*^ 

No  condition  or  circumstance  relating  to  the 
living  or  dead  seems  to  have  escaped  legisla- 
tion. Since  1811,  a  creditor's  right,  at  common 
law,  to  attach  and  keep  his  debtor's  corpse,  has 
been  taken  away ;  the  sheriff  attempting  to  enforce 

1  Shrewsbury  v.  Smith,  14  Pick.  300. 

-  What  is  sufficient  baptism  to  entitle  a  dissenter  to  chui'ch  burial, 
under  the  Act  of  Uniformity,  1662,  is  decided  by  the  Privy  Council. 
Escott  V.  Martin,  1  Eccl.  Cases,  552. 

^  Commonwealth  v.  Vial,  2  Allen,  512.  As  to  offensive  structm-es 
on  a  public  burial-ground  once  in  use,  see  Com.  v.  "Wellington,  7  Allen, 
299. 


160  MASSACHUSETTS    ECCLESIASTICAL  LAW. 

such  right  is  visited  with  the  penalty  of  five  hundred 
dollars.^  The  husband's  control  over  a  grave-stone 
erected  by  him  to  his  wife  has  been  vindicated 
against  the  claims  of  the  mother-in-law  to  erect  a 
new  stone  ;  ^  while  the  respective  rights  of  owners 
of  cemeteries,  city  corporations,  and  the  next  of  kin, 
are  learnedly  discussed  in  the  Report  of  Mr.  Samuel 
B.  Ruggles  to  the  Superior  Court  of  New  York  in 
1856,  the  claims  of  the  next  of  kin,  in  the  absence 
of  all  testamentary  disposition,  being  held  para- 
mount.^ 

1  Gen.-  Sts.  of  1860,  ch.  165,  §  36. 

2  Daniell  v.  Hayward,  9  Gray,  248. 
8  61  Examiner,  338. 


CHAPTER    XIII. 

Charities  —  Jurisdiction  —  who  are  Beneficiaries  —  Construction  of  Charities  —  Har 
vard  Seminary  —  Bills  to  enforce  —  Statute  of  Limitations  — ^  Religious  Belief  of 
Founders  —  Subscription  to  Funds  —  Visitorial  Power  —  AndoTer  Seminary  — 
Bowdoin  College  —  Control  of  Legislature  —  Income  limited  —  Charitable  Cor- 
porations numerous. 

§  1.  An  Essay  on  the  Ecclesiastical  Law  of  Mas- 
sachusetts, that  did  not  allude  to  charities,  would  be 
quite  incomplete.  Our  aim  will  be  to  examine  the 
subject  in  a  limited  manner,  without  drawing  into  it 
everything  that  has  been  pertinently  said  in  relation 
to  deeds,  wills,  trusts,  and  legacies  for  charitable 
purposes. 

Whatever  the  jurisdiction  of  the  Great  and  Gen- 
eral Court  over  charities  might  have  been,  it  was 
shared  by  the  county  courts  under  the  colony  laws  ; 
and  under  the  Royal  Charter,  in  1685,  by  the  Presi- 
dent and  Council  of  New  England.^  After  the  Rev- 
olution, the  Supreme  Judicial  Court  exercised  this 
jurisdiction  ;  the  General  Court  continuing  to  exer- 
cise at  least  a  concurrent  jurisdiction  by  special  acts.^ 

Before  the  statute  of  1818,  giving  jurisdiction  to 
the   Supreme  Judicial   Court  in  all  cases  of  trust, 

1  Hadley  v.  Hopkins,  Grammar  School,  14  Pick.  2.53. 

^  An  illustration  of  such  acts  may  be  seen :  Roxbury  Free  School 
acts  from  1669  to  1716  ;  St.  1803,  ch.  44,  in  aid- of  the  Boylston  dona- 
tion ;  and  Count  Rumford's  donation,  St.  1830,  ch.  90,  cited  in  the  Price 
Will  case,  1865. 

14  *  (161) 


162  MASSACHUSETTS  ECCLESIASTICAL  LAW. 

arising  under  deeds,  wills,  or  in  the  settlement  of 
estates,  the  Court  had  exercised  that  jurisdiction  in 
cases  affecting  charities,  as  if  the  statute  43  Eliza- 
beth had  been  fully  adopted  by  our  ancestors. 
Bartlett  v.  King,  decided  in  1815,  seems  to  have 
taken  it  for  granted.^  The  questions  formerly  raised 
are  now  well  settled  in  Massachusetts,  that  the 
statute  43  Elizabeth  was  adopted  as  a  part  of  the 
colony  law  ;  and  the  better  opinion  is,  since  the  dis- 
cussions in  the  Girard  Will  case,  that,  at  common 
law,  charities  were  protected.  Our  courts  do  not 
hesitate  to  save  from  the  hands  of  heirs,  residuary 
legatees,  and  other  claimants,  many  donations  be- 
cause they  have  the  element  of  charity,  whether 
they  are  contained  in  wills,  deeds,  or  grants  inter 
vivos!^ 

§  2.  This  element  of  charity  has  been  decided  to 
exist  in  the  following  cases,  sufficiently  to  save  them 
from  lapsing  for  uncertainty  or  vagueness,  or  want 
of  capacity  in  the  donee  to  take  the  gift. 

A  bequest  "  of  the  residue  of  my  estate,  both  real 
and  personal,  to  the  cause  of  Christ,  for  the  benefit 
and  promotion  of  true  evangelical  piety  and  religion, 
to  be  appropriated  by  A,  B,  and  C,  as  they  may 
think  fit  and  proper,"  ^  is  a  charity.  "  A  bequest  to 
the  wardens  and  vestry  of  St.  Paufs  church,  five 
thousand  dollars,  as  the  formation  of  a  fund  which  I 

i  12  Mass.  537.    43  Eliz.  ch.  4. 

'■^  Going  y.  Emery,  16  Pick.  107;  Vidal  v.  Girard's  Executors,  2 
Howard,  127;  Thomas  v.  Ellraaker,  1  Par.  98;  General  Statutes,  ch. 
113,  §2. 

8  Going  V.  Emery,  16  Pick.  107  ;  Wells  v.  Doane,  3  Gra_^,  201. 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  163 

am  desirous  should  be  established  for  the  support  of 
a  city  missionary  of  the  Protestant  Episcopal  Church," 
is  also  a  charityJ  A  bequest  "  to  maintain  public 
lectures,  to  be  delivered  in  the  city  of  Boston,  upon 
philosophy,  natural  history,  and  the  arts  and  sciences, 
or  any  of  them,  as  my  trustees  shall  think  expedi- 
ent, for  the  promotion  of  the  moral,  intellectual,  and 
physical  instruction  and  education  of  the  inhabi- 
tants," is  the  aim  of  the  Lowell  Lectures,  which 
has  been  held  a  noble  and  comprehensive  charity .^ 
Towns  and  groups  of  towns,'^  religious  societies, 
churches,  ministers,  overseers  of  the  poor,  colleges, 
schools,  theological  seminaries,*  charitable  institu- 
tions, incorporated  and  unincorporated,  whether  in 
the  Commonwealth  or  out  of  it,  have  been  held 
proper  objects  for  charitable  gifts,  deeds,  demises,  and 
bequests.^ 

In  the  case  of  a  legacy  to  the  Concord  Female 
Charitable  Society,  it  was  no  objection  that  the  do- 

1  Sohier  v.  Wardens,  12  Met.  250. 

2  Lowell  Appellant,  22  Pick.  215.  See  Tudor  on  Charitable  Trusts, 
ch.  6,  4  1,  for  English  definitions. 

3  It  is  to  be  hoped  that  the  Oliver  Smith  charity,  in  which  North- 
ampton and  seven  towns  are  interested,  ma;j  not  prove  a  nucleus  for 
legislation  like  the  Edward  Hopkins  fund,  in  which  Hopkinton  and 
Upton  were  interested.  Mr.  Hopkins'  12,500  acres  gave  rise  to  St. 
1741,  Resolve  1796,  Report  of  Judges,  1825,  House  Doc.  No.  54, 
1830,  Senate  No.  24,  1832,  ending  in  a  threatening  of  anti-rent  war. 
Foster  v.  Briggs,  3  Mass.  313  ;  Adams  v.  Bucklin,  7  Pick.  121.  See 
Biblical  Repository,  1842,  184. 

"^  Burbank  v.  Whitney,  24  Pick.  146;  Trustees  Phillips  Academy 
V.  King,  12  Mass.  546  ;  Webb  v.  Neal,  5  Allen,  575. 

^  To  purchase  and  repair  a  burial-ground,  held  a  charity,  Dexter  v. 
Gardner,  7  Allen,  247.  Eure  companies  in  Pennsylvania  are  ranked 
among  charities,  Thomas  v.  Ellmaker,  1  Par.  98, 1844. 


164  MASSACHUSETTS   FCCLESIASTWAL    LAW. 

nees  were  not  only  unincorporated  residents  of  New 
Hampshire,  but  were  some  of  them  married  women, 
whose  husbands  might  take  the  money.^ 

§  3.  The  Court,  in  cases  of  charity,  have  always 
discovered  an  amiable  interest  in  finding  out  the 
donee,  if  it  could  be  done  without  too  great  a  strain- 
ing of  rules  applicable  to  wills  and  instruments  in 
writing ;  and  for  the  donee,  when  found,  they  have 
carefully  guarded  the  gift. 

If  the  testator  has  made  no  appointment,  the 
Court  treat  the  heir  or  executor  as  trustee  for  the 
charity ;  and  may  compel  him  to  execute  the  trust, 
whether  it  affects  real  or  personal  property  ;  or  they 
may  appoint  a  new  trustee.^  Thus,  in  the  case  of 
the  married  women  of  Concord,  a  trustee  was  ap- 
pointed, "  a  suitable  person  to  hold  the  donation,  in 
trust,  for  such  charities  as  are  administered  by  said 
voluntary  society  of  women."  ^ 

And  in  case  of  a  donation  "  to  the  Marine  Bible 
Society,"  there  being  no  such  society  in  existence, 
but  there  having  lately  been  a  "  Boston  Young  Men's 
Marine  Bible  Society,"  which  was  then  extinct,  the 
Court  directed  a  trustee  to  take  the  fund,  and  dis- 
tribute it  as  nearly  as  may  be  according  to  the  regu- 
lations of  the  extinct  society,  in  procuring  Bibles  for 
seamen.* 

Where  a  testator  called  the  object  of  his  bounty 

1  Washburn  v.  Sewiill,  9  Met.  280. 

•  Bartlctt  V.  Nye,  4  Met.  378  ;  Brown  v.  Kelsey,  2  Cash.  243. 

'•^  The  male  members,  in  a  monthly  meeting  of  Quakers,  are  held  to  bo 
adequate  trustees  of  a  charity,  Dexter  v.  Gardner,  7  Allen,  243. 

*  Winslow  V.  Gumming,  3  Gush.  358 ;  Bliss  v.  American  Bible  So- 
ciety, 2  Allen,  334. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  165 

"  the  Boys*  Asylum  and  Farm  School,"  the  fund  was 
appropriated  to  the  "  Boston  Asylum  and  Farm 
School  for  Indigent  Boys,"  there  being  no  society, 
incorporated  or  unincorporated,  of  the  former  name.^ 

But  where  a  testator  gave  a  legacy  expressly  to 
"  the  Seaman's  Aid  Society  in  the  City  of  Boston," 
the  Court  refused  to  admit  testimony  showing 
that  the  testator  really  intended  another  society, 
"  The  Seaman's  Friend  Society,"  as  the  object  of 
his  bounty.^ 

§  4.  The  Court  not  only  charge  themselves  with 
the  labor  of  ascertaining  by  careful  examination 
whether  the  bequest  is  charitable,  in  whom  the  char- 
ity vested  in  its  origin ;  they  also  inquire  whether  it 
has  been  properly  administered,  who  are  entitled  to 
the  present  custody  of  the  fund,  and  the  benefits 
flowing  from  it.'^  In  the  case  of  a  deed  of  lands  to 
trustees  "  for  the  uses,  intents,  and  purposes  of  the 
people  called  Quakers,  forever,  the  trustees  to  con- 
vey the  same  on  request  to  the  overseers  of  the 
Swanzey  Monthly  Meeting,"  provided  ''  said  overseers 
are  in  unity  with  the  New  England  Yearly  Meeting," 
the  Court,  with  exemplary,  almost  subhme,  patience, 

'  Minot  V.  Boston  Asylum,  7  Met.  416. 

2  Tucker  y.  Seaman's  Aid  Society,  7  Met.  188.  That  the  Common- 
wealth may  gracefully  decline  a  donation  made  to  itself  improvidently, 
see  House  Doc.  1859,  No,  91,  in  the  matter  of  Isaac  B,  Woodbury's 
bequest. 

That  a  legacy  may  sometimes  be  lost  for  want  of  prompt  notice  of 
its  acceptance,  see  Colonization  Society  v.  Smith's  Trustees,  2  Allen, 
302.  What  is  a  partial  acceptance  of  a  legacy,  by  a  compromise 
among  the  legatees  of  the  Price  Lectures  fund,  see  Attorney  General  v. 
Rector  and  Wardens  of  Trinity  Church,  1864.    9  Allen. 

8  Fisher  v.  Ellis,  3  Pick.  322  ;  Raynhara  v.  Raynham,  23  Pick.  148 


166  MASSACHUSETTS  ECCLESIASTICAL    LAW. 

entering  into  all  the  questions  of  law,  doctrine,  and 
fact  involved,  decide  that  the  uncertainty  of  the  par- 
ties who  are  to  be  benefited  does  not  invalidate  the 
original  deed  to  the  trustees,  who  take  a  charitable 
estate  for  the  use  and  benefit  of  the  S  wanzey  Monthly 
Meeting,  a  class  of  Quakers  living  within  a  defined 
territory,  and  not  for  the  Friends  in  general ;  and  that 
Oliver  Earle  and  his  associates,  of  the  Orthodox  per- 
suasion (amid  the  conflict  of  testimony  about  the 
choice  of  clerks,  and  who  constituted  the  yearly  meet- 
ing), are  "the  overseers  now  in  unity  with  the  New 
England  Yearly  Meeting,"  and  are,  as  such,  entitled 
to  hold  the  lot  of  land  in  Swanzey,  to  the  exclusion 
of  William  Wood  and  others  of  the  Hicksite  per- 
suasion.^ 

It  is  not  the  labor  of  ascertaining  the  beneficiary 
that  will  prevent  a  charity  from  being  supported ; 
but  the  labor,  combined  with  improper  elements,  will 
sometimes  induce  the  Court  to  execute  the  charity  in 
part  only.  Thus,  a  donation  to  a  town  to  support  a 
public  school,  excluding  nine  persons  by  name,  and 
their  descendants  for  one  hundred  years,  is  held 
a  charitable  donation,  which  goes  to  the  town,  dis- 
charged of  its  invidious  features.  ^ 

1  Earle  v.  Wood,  8  Cush.  430.  The  Massachusetts  Court  was 
aided  by  the  investigations  made  in  New  Jersey,  1832,  in  the  case  of 
Hcndrickson  v.  Dccow,  1  Saxton,  577,  where  the  questions  of  Quaker 
polity  and  doctrine  were  examined  at  great  length,  30  Examiner,  237  ; 
52  Examiner,  321  ;  Dexter  v.  Gardner,  7  Allen,  243,  where  the  func- 
tions of  the  various  meetings  —  particular,  preparative,  monthly,  quar- 
terly, and  yearly  —  are  discussed,  and  their  capacity  to  take  a  charitablo 
bequest. 

2  Nourse  v.  Merriam,  8  Cush.  11.     A  bequest  to  a  school,  where  only 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  16V 

While  the  Court  are  reluctant  to  see  a  charitable 
intention  of  any  definiteness  fail  for  want  of  trustees 
or  for  any  other  exigency,  they  do  not,  as  in  England, 
on  the  mere  discovery  of  a  charitable  intention,  how- 
ever vague,  call  on  the  Attorney  General  to  elaborate 
a  scheme  of  charity  to  fit  the  occasion,  and  execute 
the  same  cy  pres,  or  as  near  as  may  be.  ^ 

§  5.  The  Court,  under  the  General  Statutes,  "  may 
hear  and  determine  in  equity  all  cases,  when  the  par- 
ties have  not  an  adequate  and  complete  remedy  at 
the  common  law."  In  suits  and  proceedings  for 
enforcing  and  regulating  the  execution  of  trusts, 
whether  the  trusts  relate  to  real  or  personal  estate, 
under  the  statute,  the  Court  are  governed  by  the 
nature  and  original  features  of  the  charity,  as  well 
as  by  settled  chancery  rules.  On  these  grounds  they 
have  declined  to  entertain  that  "plentiful"  jurisdic- 
tion said  by  Lord  Coke  to  belong  to  the  English 
Chancery.  On  the  application  of  the  president  and 
fellows  of  Harvard  College  for  leave  to  transfer  to 
new  trustees,  disconnected  with  the  college,  funds 

Bibles  and  spelling-books  were  to  be  used,  held  good.  Tainter  v.  Clark, 
5  Allen,  66. 

English  statutes  of  mortmain  were  never  in  force  in  Massachusetts. 
4  Dane,  Ab.  y.  238,  239.  As  to  our  early  mortmain  statutes,  1754, 
1785,  see  Bartlett  v.  King,  12  Mass.  545. 

For  English  distinctions  in  regard  to  Roman  Catholic  gifts  for  super- 
stitious uses,  perpetual  masses,  &c.,  see  West  v.  Shuttleworth,  2  My.  & 
K.  684.  As  to  Jewish  trusts,  28  Bear,  1  ;  as  to  Shaker,  Thornton  v. 
Howe,  10  Week,  642;  13  Law.  Mag.  and  Rev.  109,  202. 

1  Baker  v.  Smith,  13  Met.  34,  ch.  113,  §  2.  For  a  limited  use  of  the 
doctrine  of  cy  pres,  see  Count  Rumford's  donation,  cited  in  Attorney 
General  v.  Trinity  Church.  For  the  English  doctrine  of  cy  pres,  see 
Tudor  on  Charitable  Trusts,  ch.  6,  §  2. 


168  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

given  to  themselves  originally,  for  the  promotion  of 
theological  education  in  the  college,  the  Court  refused 
to  make  the  change,  though  the  connection  between 
the  college  and  the  divinity  school  was  inconven- 
ient, and  the  separation  would  be  advantageous  to 
both.  Where  serious  changes  are  desired,  the  Court 
must  know  that  trustees  already  appointed  have  not 
power  to  accept  the  trust,  or  it  has  not  been  thus  far 
faithfully  administered ;  or  the  objects  of  the  charity 
have  failed;  or  the  parties  holdhig  the  trust  have 
refused  to  accept  or  execute  it;  or  the  funds  have 
accumulated  beyond  the  uses  of  the  charity,  and  the 
trustees  ask  for  directions  as  to  the  application  of 
the  surplus.^ 

§  6.  The  supervision  of  the  Court  is  exercised  on 
application  of  the  attorney  general,  in  case  the 
matter  affects  a  public  charity.  In  this  connection, 
it  has  been  decided  that  while  a  religious  society  is 
a  public  corporation  in  some  points  of  view,  it  is  not 
necessarily  a  charity .^  Members  of  any  denomina- 
tion associating  together  to  erect  a  house  to  be  used 

1  Harvard  College  v.  The  Society  for  Promoting,  3  Gray,  280; 
45  Examiner,  355.  The  separation  of  the  divinity  scliool  refused  by 
the  Court  was  afterwards  allowed  by  Resolve,  1858,  ch.  176,  of  the 
Legislature.  The  control  of  the  Legislature  over  funds  is  examined  in 
the  case  of  1st  Parish,  Porthind  v.  2d  Parish,  22d  Connecticut;  and 
the  power  of  the  Lcgislarure  of  New  York  to  alter  the  charter  of  Trin- 
ity Church  is  examined  in  Judge  Redfield's  pamphlet,  1858.  In  1837, 
the  chancellor  of  New  Jersey  denied  the  power  of  merging  books  and 
funds  of  a  seminary,  by  vote,  into  the  seminary  of  anotlier  denomina- 
tion. Trustees  of  Associate  Reformed  Church  v.  Princeton  Theological 
Seminary,  3  Green,  ch.  77. 

2  St.  Luke's  V.  Slack,  7  Cush.  226;  Statutes  1849,  ch.  186,  §  8; 
General   Statutes,  ch.   14,  ^  20;  Goddard   v.  Smithett.  3  Gray.    116. 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  169 

by  themselves  and  others  for  public  worship  may  be- 
come a  religious  society,  but  are  not  engaged  in  a 
charity  in  the  legal  sense,  and  cannot  on  that  ground 
be  brought  before  the  Court  by  the  attorney  general. ^ 

It  has  been  settled  that  a  Congregational  church 
does  not  become  a  public  charity,  and  exposed  to  the 
attorney  general's  examination,  by  having  funds  left  to 
it,  which  it  may  apply  to  such  purposes  as  it  chooses.^ 

What  amounts  to  a  dedication  to  public  religious 
worship,  so  as  to  bring  the  subject  matter  within  the 
supervision  of  the  attorney  general,  has  been  much 
discussed  in  the  recent  case  of  St.  Ann's  Church, 
Lowell.  And  it  is  there  held  that  a  manufacturing 
company,  after  building  a  house  for  public  worship 
on  their  own  land,  and  allowing  it  to  be  consecrated 
with  religious  rites,  retaining,  however,  the  fee  and 
control  in  themselves,  have  made  no  legal  dedica- 
tion.^ But  schools  and  colleges  are  charities,  though 
limited  to  towns  and  classes.  Thus  we  have,  in 
1848,  the  district  attorney  inquiring  of  the  Court, 
whether  the  Putnam  Free  School  of  Newburyport 
might  educate  "  boys  and  girls "  under  the  will  of 
the  founder,  who  had  left  a  fund  for  the  education 
of  "youth." 4 


Kobertson  v.  Bullions,  9  Barbour,  64,  gives  the  view  taken  of  religious 
societies  by  the  courts  of  New  York. 

i  See  ch.  9,  §  10.  Attorney  General  v.  Federal  Street  Church,  3 
Gray,  1. 

2  Parker  v.  May,  5  Gush.  336 ;  Attorney  General  v.  Trinity  Church, 
1865.  For  Informations,  Bills  and  Petitions,  see  Tudor  on  Charita- 
able  Trusts,  ch.  5. 

^  Attorney  General  v.  Merrimack  Co.,  14  Gray,  586. 

*  Nelson  v.  Gushing,  2  Gushing,  521. 
15 


no  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

§  7.  Though  a  public  examination  through  the  at- 
torney general  cannot  be  had,  parties  may  try  their 
rights  by  bill  or  suit.  In  the  year  1827,  the  residuary 
legatees  under  the  will  of  Lemuel  Drake,  by  writ 
of  entry,  claim  a  tract  of  land  devised  to  the  town  of 
Stoughton  by  their  ancestor,  to  build  a  school  upon, 
because  the  town  for  twenty  years  had  neglected  to 
build.  The  forfeiture  was  decreed  by  the  Court, 
the  town  having  delayed  an  unreasonable  time.^ 

Residuary  devisees  have  obtained  the  forfeiture  of 
a  lot  which  had  been  conveyed  to  a  religious  society 
on  condition  that  it  should  be  forever  used  as  a 
meeting-house  lot;  although  the  society,  when  they 
rebuilt  elsewhere,  expressly  voted  that  they  did  not 
intend  to  abandon  the  lot.^ 

In  another  case,  where  the  conditions  in  the  deed 
of  a  lot  of  land  to  a  Methodist  religious  society  were 
twofold,  —  first,  that  the  control  and  direction  should 
be  secured  to  the  anti-slavery  members  of  the  church  ; 
second,  that  in  no  case  should  the  General  Confer- 
ence of  the  Methodist  Episcopal  Church  have  any 
control,  —  it  was  held  that  a  forfeiture  of  the  land 
was  wrought  when  the  bishop,  at  the  request  of  the 
society,  sent  a  minister,  and  the  minister  appointed 
nine  trustees  ;  although  said  trustees  might  be  anti- 
slavery  men.^ 

1  Hayden  v.  Stoughton,  5  Pick.  528.  "What  is  a  reasonable  time, 
and  the  effects  of  delay,  are  discussed  further  in  Taintcr  v.  Clark,  5 
Allen,  66. 

'■^  Austin  V.  Cambridg'cport,  21  Pick.  215. 

8  Guild  I'.  Richards,  16  Gray,  1860.  This  case  has  an  exposition  of 
the  Methodist  polity,  showing  the  control  of  the  meeting-houses  to  be 
in  the  ministry ;  and  the  control  of  ministers  in  the  conference.  8.  p. 
People  V.  Steele,  2  Barbour,  397,  N.  Y.,  1848. 


MASSACHUSETTS   ECCLESIASTICAL   LAW.  171 

.  The  Court  does  not  measure  its  care  of  charities 
by  the  form  of  the  suit  brought.  We  have  the  presi- 
dent of  Bowdoin  College,  in  1833,  by  a  simple  suit 
at  law  in  the  United  States  Court  against  the  treas- 
urer, for  his  salary  and  perquisites,  obtaining  a  learned 
and  favorable  construction  of  the  charter  of  that  lit- 
erary corporation.^  However,  a  bill  in  equity  is  the 
usual  course  where  parties  are  numerous,  who  con- 
sider themselves  entitled  to  the  custody  of  charitable 
funds,  or  any  description  of  relief.  Under  the  early, 
as  well  as  the  later  statutes,  these  applications  by  bill 
were  made.  The  inhabitants  of  Hadley,  in  1833, 
apply  to  the  Court  by  bill  to  exclude  from  the  Hop- 
kins Grammar  School,  founded  in  1657,  all  but 
their  own  inhabitants,  which  the  Court  declined 
doing.  But  in  granting  the  prayer  for  a  general 
construction  of  this  charity,  the  Court  illustrate  the 
doctrine,  that,  in  its  supervision  of  charities,  no  objec- 
tion is  taken  to  perpetuities,  and  the  possession  of 
the  trustee  is  not  adverse  to  that  of  the  beneficiary .^ 
It  is  to  be  borne  in  mind,  that  in  these  applications 
for  reUef,  whether  made  by  the  attorney  general, 
by  bill  or  by  suit,  that  the  laws  of  pleading  and 
practice  are  not  relaxed  in  favor  of  charities ;  that 
the  Statute  of  Limitations  is  also  applied  to  charita- 
ble cases,  where  the  possession  is  clearly  adverse, 
beginning  to  run  from  the  commencement  of  such 

1  Allen  V.  McKeen,  1  Sumner,  276.  As  to  charities,  U.  S.  Courts 
are  governed  by  State  laws.    Loring  v.  Marsh,  Miss.  Cir.  Sess.  1865. 

^  Hadley  v.  Trustees  Hopkins  Grammar  School,  14  Pick.  253.  In 
the  House  of  Lords,  it  is  held,  that,  in  case  of  an  ancient  trust  for  pro- 
moting godly  learning.  Dissenters  are  not  proper  trustees.  Baker  v. 
Lee,  2  Times  Rep.  701. 


172  MASSACHUSETTS   ECCLESIASTICAL   LAW. 

adverse  possession.^  Heirs  and  residuary  legatees  of 
donors  who  indulge  expectations  of  succeeding,  in 
process  of  time,  to  the  charitable  devises  and  bci- 
quests  of  their  ancestors,  will  do  well  to  remember 
the  application  of  the  Statute  of  Limitations  in  the 
Brattle  Street  Parsonage  case  ;  where  it  v/as  held 
that  heirs  of  Mrs.  Hancock,  who  appeared  by  her 
will  to  have,  a  perpetual  claim,  were  nevertheless 
effectually  cut  off  by  the  rule  against  perpetuities, 
on  the  death  of  those  in  being  at  the  decease  of  Mrs. 
Hancock  and  twenty-one  years  thereafter.^  Landed 
proprietors  who  hope  to  work  a  forfeiture  for  a  breach 
in  the  condition  of  a  deed  may  derive  instruction 
from  the  Methodist  Church  case  at  East  Cam- 
bridge. It  is  there  held  that  the  clause  in  a  deed 
restricting  the  use  of  land  to  a  "  meeting-house  "  is 
repugnant  to  the  habendum  of  the  deed,  which  al- 
lows it  to  be  used  for  a  "  meeting-house,  parsonage, 
and  school,"  and  therefore  void.^ 

§  8.  When  the  inquiries  are  made  in  proper  form 
and  in  due  time,  the  Court  enter  on  the  necessary  in- 
vestigation. If  the  enjoyment  of  the  property  real  or 
personal  depends  on  the  party  maintaining  a  specific 
faith,  definitely  described  by  the  donor,  the  faith  of 
the  donee,  or  those  claiming  under  him,  is  looked  into. 

1  Attorney.  General  v.  Proprietors,  3  Gray,  1 . 

2  Proprietors  v.  Grant,  3  Gray,  142;  Wells  v.  Heath,  10  Gray,  26. 
When  charitable  funds  must  vest,  see  Odell  v.  Odell,  10  Allen. 

8  Proprietors  of  Canal  Bridj^c  v.  Methodist  Society,  13  Met.  335. 
Those  claiming  no  descent  from  the  original  devisors  have  a  very  slight 
prospect  of  recovering  lands  devised  to  a  religious  society,  whatever 
may  be  the  present  changes  in  polity  and  doctrine  from  those  of  the 
original  giantee.  King's  Chapel  v.  Pelham,  9  Mass.  501 ;  14  Examiner, 
268 ;    Attorney  General  v.  Proprietors,  3  Gray,  1 . 


MASSACHUSETTS   ECCLESIASTICAL   LAW.  173 

Thus  the  inhabitants  of  Princeton,  in  their  paro- 
chial capacity,  were  held  not  entitled  to  a  legacy 
under  the  will  of  Mr.  Boylston,  given  in  1818,  for 
the  use  and  improvement  of  the  then  pastor  of  the 
Congregational  Church  and  Society  and  his  success- 
ors, "  so  long  as  he  or  they  continue  to  be  pastors, 
and  do  preach  and  maintain  the  same  essential  doc- 
trines and  principles  of  faith  and  practice  as  are 
now  preached  and  taught."  The  ground  of  refusal 
was  that  the  former  pastor,  in  1818,  was  Unitarian, 
and  the  present  pastor  was  Trinitarian ;  the  Court 
denying  that  "  any  school  of  theology  or  jurispru- 
dence ever  considered  these  two  systems  one  and 
the  same."  ^ 

Many  of  the  difficulties  in  the  Quaker  case  al- 
ready cited  arose  from  the  grantor  in  the  deed  limit- 
ing the  use  of  the  land  to  those  in  "  unity,"  requiring 
of  the  Court  an  examination  of  the  doctrine  as  well 
as  discipline  of  the  denomination."^ 

In  the  case  of  a  legacy  to  Phillips  Academy,  the 
Court  distinguish  between  the  cardinal  object  of  the 
institution,  which  is  "  to  teach  our  Holy  Christian 
Religion,"  and  the  means  by  which  that  object  is  to 
be  accomplished ;  and  they  pronounce  the  Calvin- 
istic  and  Hopkinsian  means  to  be  virtually  the  same, 

1  Princeton  v.  Adams,  10  Cush.  128  ;  see  also  Council  at  Princeton, 
1817. 

2  The  Excision  and  other  proceedings  of  1837  show  the  danger  of 
making  the  title  to  property  depend  on  a  connection  with  a  synod,  pres- 
bytery, or  general  assembly.  Repertory,  1837,  476,  485.  That  a 
strict  compliance  in  regard  to  time,  place,  and  doctrine  is  held  neces- 
sary to  entitle  one  to  the  use  of  a  ministerial  fund,  see  Hunt  v.  Perley, 
34  Maine,  32. 

15* 


174  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

and  alike  goodJ  Where  the  terms  of  the  deed 
founding  the  charity,  however,  are  not  clear  and 
precise,  but  obscure,  doubtful,  and  equivocal,  our 
courts  are  not  disposed  to  lay  too  much  stress  on 
evidence  of  the  views  of  the  founder;  especially, 
in  case  of  donations  to  religious  societies.  Thus, 
in  New  Hampshire,  the  words  "  Congregational 
persuasion"  do  not  confine  the  enjoyment  of  a 
legacy  to  those  of  the  Orthodox  in  distinction 
from  the  Unitarian  belief,  especially  where  the  tenets 
of  the  donor  himself  are  not  very  marked ;  ^  and  in 
the  case  of  the  Federal  Street  Meeting  House,  the 
words  in  the  deed  conveying  the  land  to  trustees  to 
be  held  "  according  to  the  tenures  and  after  the 
same  manner  as  the  Church  of  Scotland  hold  and 
enjoy  lands,"  refer  not  to  the  religious  doctrines  of 
the  associates,  but  to  the  legal  tenure  by  which  the 
land  is  held ;  and  they  do  not  prevent  the  pew-own- 
ers from  changing  by  vote  both  doctrine  and  denom- 
ination.^ 

1  Trustees  Phillips  Academy  v.  King,  12  Mass.  537.  In  Pennsyl- 
vania, the  union  of  Associate  Seceders  and  Associate  Reformed  Synods 
held  good.  6  Wright's  Reports.  McGinnis  v.  Watson.  In  New 
York,  Calvinistic  and  Arminian  adherents  to  the  Heidelberg  Catechism 
have  been  held  equally  meritorious.  Miller  v.  Gable,  2  Denio,  .'335. 
The  incidental  and  main  objects  of  a  grant  are  distinguished  in  Com- 
monwealth V.  Fisk,  8  Met.  238.     Tudor  ch.  6,  §  1. 

'^  Dublin  Case,  38  New  Hampshire,  460,  where  the  early  history  of 
Unitarianism  in  Massachusetts  is  traced.  20  Examiner,  240.  Tho 
difficulty  of  fixing  the  creed  of  an  individual  is  illustrated  by  the  HoUis 
Professorship.    7  Examiner,  64.     2  Sp.  Pilgrims,  581. 

»  Ch.  9,  ^  5.  Att'y-Genl.  v.  Proprietors,  3  Gray,  1.  In  New  York, 
the  facility  of  changing  from  the  Congregational  to  the  Presbyterian 
polity  is  illustrated  by  Robertson  v.  Bullions,  9  Barbour,  64  ;  Belport  v. 
Tooker,  29  Barbour,  257 ;  per  contra,  ch.  9,  ^  6.     The  Unitarian  Relig- 


MASSACHUSETTS  ECCLESIASTICAL    LAW.  175 

In  construing  wills,  deeds,  and  other  charitable 
instruments,  great  use  is  made  of  the  laws  in  force 
in  pari  materia^  as  well  as  the  acts  of  the  donor 
and  his  associates.  In  Earle  v.  Wood,  Attorney- 
General  V,  Federal  St.  M.  Ho.,  Hadley  v.  Hopkins 
Grammar  School,  and  Attorney  General  v.  Trinity 
Church,  Boston ;  so,  too,  in  the  New  Hampshire 
case ;  the  Court  felt  bound  to  take  notice  of  the  con- 
temporaneous construction,  and  of  aU  the  facts  and 
circumstances  that  might  aid  the  investigation, 
whether  stated  by  counsel  or  not.^ 

§  9.  Few  American  charities  are  endowed  in  the 
outset.  The  work  is  commonly  done  by  various  sub- 
scribers ;  and  the  question  has  risen,  to  what  extent 
subscribers  are  bound  to  pay  subscriptions.  Such 
subscriptions,  and  notes  given  in  pursuance  of  them, 
at  an  interval  after  the  subscription,  are  now  held 
binding.  Whatever  early  objections  may  have  been 
taken,  they  are  now  overruled.  The  consideration 
is  held  sufficient,  though  in  the  interval  the  note 
given  to  found  an  academy  has  been  transferred, 
without  indorsement,  to  a  new  corporation,  author- 
ized to  found  a  college  in  furtherance  of  the  objects 
of  the   academy,   and  take  its   subscriptions.^     In 

ious  Society  of  Cincinnati,  incorporated,  but  having  no  creed,  was  al- 
lowed to  dissolve  itself  by  vote  of  the  majority ;  a  part  of  the  propri- 
etors joining  a  kindred  religious  society.  Wiswell  v.  Green,  Superior 
Court,  1860. 

1  Feoffees  of  Ipswich  Grammar  School  i'.  Andrews,  8  IVIet.  587. 

2  Amherst  Academy  v.  Cowles,  6  Pick.  427.  It  seems  to  be  a  prin- 
ciple now  of  Massachusetts  colleges,  that  no  religious  test  is  to  be 
required  of  professors  or  students.  See  Amherst  College,  special  laws 
1825,  ch.  85,  §  6.     See,  also,  in  1849,  House   Doc.   130,  in  regard  to 


176  MASSACHUSETTS   ECCLESIASTICAL   LAW. 

a  subsequent  case,  the  defendant  was  not  excused 
from  paying  his  subscription,  made  on  condition  that 
the  funds  be  employed  in  a  certain  town,  by  the  fact 
that  the  plaintiffs  had  endeavored,  in  the  interval, 
without  success,  however,  to  obtain  a  charter  for 
locating  the  college  in  another  town.^ 

In  all  such  cases,  the  mutuality  of  the  promises,  as 
well  as  the  charity  of  the  object,  is  insisted  upon  ; 
and  the  power  of  the  Court  to  compel  the  plaintiff  to 
execute  the  trust  which  he  assumes,  on  his  part, 
towards  the  subscribers,  is  asserted/^ 

chartering  the  College  of  the  Holy  Cross,  47  Examiner,  51.  Also 
Tufts  College,  special  laws,  1852,  ch.  141,  §  6.  What  tests  are  legally 
applicable  to  professors  of  Columbia  College,  New  York,  before  their 
election  ;  discussed,  Church  Review,  7,  284 ;  57  Examiner,  53.  Tests 
for  officers  in  Yale  College  were  abandoned,  1822  ;  they  were  never 
applied  to  students.  Erom  the  reign  of  Charles  II.  to  the  statute  of 
1854,  undergraduates  of  Oxford  and  Cambridge  subscribed  the  Thirty- 
nine  Articles  ;  candidates  for  degrees  above  A.  B.  still  do  so.  In  the 
Scotcli  universities,  no  tests  have  been  applied  to  teachers  since  1853  ; 
never  to  students. 

1  Williams  College  v.  Danforth,  12  Pick.  541. 

2  Hanson  v.  Stetson,  5  Pick.  506 ;  Thompson  v.  Page,  1  Met  565  ; 
Ives  V.  Stirling,  6  Met.  310  ;  Watkins  v.  Eamcs,  9  Cush.  539  ;  Mirick 
V.  French,  2  Gray,  420.  Gorman  v.  Carroll,  7  Allen,  199,  as  to  sub- 
scriptions obtained  by  misstatements. 

As  to  the  specific  appropriation  of  funds  in  Meth.  Epis.  Gh.,  see  4 
Bangs' History  of  M.  175.  State  donations  for  all  colleges  are  de- 
scribed in  House  Doc.  26  for  1832. 

Applications  from  Amherst  College  may  be  found  in  House  Doc. 
105,  1847  ;  Senate  Doc.  134,  1854.  For  Williams  College,  in  19  Sen- 
ate Doc.  1842;  60  House,  1843. 

At  tlie  head  of  a  list  of  60  incorporated  Academies,  stands  Phil- 
lips' Academy,  Andover,  incorporated  Oct.  4,  1780.  The  academies 
have  been  but  little  aided  by  the  State,  House  Doc.  No.  16,  1827  ; 
1848,  House  Doc.  32.  For  New  England  Schools,  see  Bib,  Rep.  1841, 
137.     For  early   and    later   Massachusetts   educational    laws,   5   Chr. 


MASSACHUSETTS  ECCLESIASTICAL   LAW.  Ill 

§  10.  In  regard  to  most  of  the  successful  charities, 
that  have  existed  a  few  years,  it  becomes  necessary 
to  know  where  the  visitorial  power  resides.  The 
founder  may  appoint  his  own  visitors.  In  case  he 
makes  no  appointment,  but  entrusts  the  management 
and  control  of  affairs  to  trustees,  such  trustees  are  vir- 
tually visitors,  under  the  superintendence  of  the  Court. 
The  Court  have  decided  that  there  is  no  power  of 
visitation  left  in  the  heirs  of  the  founders,  by  bill 
in  chancery  or  other  means,  in  case  of  neglect  of 
the  trustees,  their  misapplication  of  funds,  or  other 
breach  of  trust ;  the  Court  following,  in  1836,  the  law 
as  laid  down  in  Dartmouth  and  Bowdoin  Colleges.^ 
In  most  of  the  elaborate  charities,  the  visitorial 
power  is  lodged  in  a  board  of  visitors  by  the  stat- 
utes of  the  founder  and  act  of  incorporation,  whose 
powers  are  regulated  with  considerable  care.  In  the 
case  of  Bowdoin  College,  the  board  of  visitors  were 
a  separate  corporation.^ 

On  appeal  by  a  professor  of  the  Theological  Sem- 

Review,  396 ;  6  do.  1.     Bib,  Sac.  Oct,  1850,  as  to  colleges  and  profes- 
sional schools. 

That  separate  schools  for  colored  children  in  Massachusetts  are  con- 
stitutional, see  Roberts  v.  Boston,  5  Gush.  198,  1849.  That  colored 
children,  inhabitants  of  other  States,  might  not  safely  be  taught  in  Con- 
necticut, see  Crandall  v.  State,  1834,  10  Conn.  340;  Am.  Jurist,  xi. 
244. 

1  Sanderson  v.  White,  18  Pick.  328.  Tainter  v.  Clark,  5  Allen,  66. 
What  force  is  to  be  given  to  the  compromises  of  visitors,  and  their  con- 
stmctions  of  the  trust,  see  Att'y  Genl.  v.  Trinity  Church,  Boston,  1865. 

2  The  trust  deed  of  Mr.  William  Appleton,  for  founding  an  Episcopal 
Theological  Seminary,  makes  the  bishops  of  the  New  England  States 
visitors.  See  Mass.  Convention,  1846,  48.  As  to  visitors  in  England, 
see  Tudor,  ch.  .4,  §  2,  3.  In  the  charter  of  the  Abbot  Female  Acad- 
emy, Andover,  1829,  the  trustees  are  stated  to  be  the  visitors. 


178  MASSACHUSETTS   ECCLESIASTICAL  LAW. 

inary  at  Andover  from  a  final  decree  of  the  visitors, 
depriving  him  of  office,  the  Supreme  Judicial  Court 
hold  themselves  restricted  to  the  inquiry,  whether 
the  visitors  have  acted  contrary  to  the  statutes  of  the 
founders,  and  exceeded  their  jurisdiction.  In  such 
examination,  the  Court  is  also  confined  to  the  record 
of  the  visitors,  and  cannot  rehear  the  evidence.  Any 
irregularity  not  apparent  on  such  record  of  the  visit- 
ors cannot  be  noticed;  especially  do  the  Court  refuse 
to  notice  antecedent  irregularities  of  the  board  of 
trustees,  for  which  an  appeal  was  taken  to  the  vis- 
itors, and  by  the  visitors  sustained.  Whatever  the 
grounds  of  objection  to  such  professor,  they  must  be 
"  fully  and  plainly,  substantially  and  formally,"  made 
known  to  him.  And  the  statute  causes  for  removal 
being  "  gross  neglect,"  do  not  include  minor  defects 
of  temper  and  conduct,  stated  fully  in  the  protracted 
examination  of  the  case.^  The  visitors  are  held  also 
to  general  impartiality,  fairness,  and  liberality  in  the 
examination  of  testimony,  in  the  admission  of  coun- 
sel, and  other  matters  in  the  course  of  their  examina- 
tion ;  and  the  professor  accused  is  entitled,  1st,  to  a 
citation  to  appear;  2d,  a  charge  to  answer;  3d,  a 
time  for  proofs  and  answers ;  4th,  liberty  of  coun- 
sel to  defend  his  cause  ;  5th,  a  solemn  sentence,  after 
hearing  and  answer.^ 

1  Murdock,  appellant,  7  Pick.  303.  See  9  Church  Review,  .508,  for  in- 
cidents of  the  case;  also  Andover  Semi-Centennial,  16  Bib,  Sac. 672. 

2  Murdock  v.  Trustees,  12  Pick.  243.  The  principles  of  notice  and 
appeal  familiar  to  the  English  ecclesiastical  courts  are  stated  in  the 
following  recent  cases  :  As  to  specific  statement  of  charges  in  doctrinal 
cases,  see  Heath  v.  Burder,  2  Times  Rep.  670,  No  appeal  lies  from  the 
Privy  Council  to  the  bishops  in  convocation,  Gorham  v.  Bishop  Exeter, 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  179 

§  11.  The  case  of  Dr.  Murdock,  in  1831,  was  fol- 
lowed, in  1833,  by  the  case  of  President  Allen,  of 
Bowdoin  College,  where  the  rights  of  visitors,  offi- 
cers, and  legislatures  were  aU  brought  into  solemn 
review.  It  was  there  held  that  Massachusetts,  hav- 
ing founded  and  partially  endowed  Bowdoin  CoUege, 
and  consented  to  the  appointment  of  a  board  of  vis- 
itors, retained  no  visitorial  power  over  this  private 
charitable  corporation  ;  that  she  could  not  resume  her 
grants  either  of  visitorial  power  or  of  land  ;  nor  could 
the  Legislature  of  Maine,  after  the  separation  from 
Massachusetts,  without  the  assent  both  of  the  college 
and  of  Massachusetts,  make  changes  in  the  visitorial 
board,  unless  such  changes  are  for  the  "  best  interests 
of  the  college,"  and  are  first  proposed  by  the  coUege 
boards  of  trustees  and  overseers ;  which  changes 
must  be  concurrently  agreed  upon  by  the  Legislatures 
of  both  States.!  It  was  also  held,  that  the  assent 
of  the  president  and  both  the  boards  of  trustees  and 
visitors  cannot  be  presumed,  so  as  to  make  valid 

14  Jurist ;  nor  from  the  decision  of  the  archbishop  revoking  a  minister's 
license  to  preach,  Poole  v.  Bishop  London,  4  Times  Rep.  225. 

1  Allen  V.  McKean,  1  Sumner,  276.  By  St.  186.5,  ch.  173,  the  over- 
seers of  Harvard  are  to  be  elected  by  the  alumni,  when  the  assent  of 
the  overseers  and  president  and  fellows  is  obtained. 

On  the  early  agreement  in  doctrine  and  instruction  between  Har- 
vard and  Yale,  see  Bibhcal  Repository,  1841,  177,  and  1842.  It  seems 
that  Williams  is  the  only  New  England  college  that  retains  the  Assem- 
bly's Catechism  as  a  text-book. 

An  enumeration  of  the  Commonwealth's  acts  of  supervision  in  the 
affairs  of  Harvard  College,  and  changes  made  in  the  government  of 
the  college,  may  be  found  in  Sen.  Doc.  1849,  No.  158.  Constitution, 
ch.  5,  §  2,  and  St.  1851,  ch.  224,  contain  the  general  features  of  govern- 
ment in  this  college,  which  was,  until  A.  D.  1700,  the  corporation  of  the 
Commonwealth. 


180  MASSACHUSETTS    ECCLESIASTICAL  LAW. 

and  binding  on  the  college  any  unconstitutional 
changes,  made  by  the  State  of  Maine  in  the  charac- 
ter and  construction  of  the  boards.  Moreover,  these 
boards  are  not  to  be  held  by  their  "  acquiescence," 
in  order  to  avoid  collision  with  the  State  of  Maine, 
to  have  "  accepted  "  such  changes  as  were  not  for  the 
best  interests  of  the  college.  As  to  the  president 
of  the  institution,  elected  to  his  office  during  "  good 
behavior,"  he  has  such  a  tenure  in  the  office,  that 
he  cannot,  by  a  summary  act  of  the  Legislature  of 
Maine,  without  charges,  be  removed  therefrom. 

§  12.  What  modest  power,  in  furtherance  of  its 
original  grant,  the  General  Court  of  Massachusetts 
may  properly  exercise  over  such  grant,  after  due  no- 
tice, on  petition  of  the  parties  interested,  is  discussed 
in  the  case  of  Lanesboro'  and  the  resolves  of  1797, 
1814,  and  1837,  relating  to  the  sale  of  their  minis- 
terial lot,  and  the  distribution  of  the  fund.  It  was 
there  held,  that  a  grant  made  to  the  town  of  Lanes- 
boro', in  1741,  for  the  benefit  of  the  ministry,  accrued 
to  the  advantage  of  ministers  of  after-born  de- 
nominations ;  and  a  proviso  to  that  effect  in  the 
resolve  of  1797,  could  not  be  easily  dispensed  with, 
after  an  "  acquiescence  of  fifty  years."  ^  The  very 
limited  power  of  the  General  Court,  by  acts  and  re- 
solves, to  interpose  in  private  transactions,  has  also 

1  Humphrey  v.  Whitney,  3  Pick.  164  ;  Lanesboro'  v.  Curtis,  22  Pick. 
330.  Largo  visitorial  and  supervisory  claims  for  the  General  Assembly 
of  the  Presbyterian  Church,  extending  to  charities,  colleges,  academies, 
seminaries,  missions,  publications,  and  church  edifices,  have  been  made 
in  imitation  of  the  Scotch  Presbyterian  establishment.  Spectator, 
1832,  142  ;  Repertory,  1837,  101  ;  Rep.  1853,  560.  As  to  Meth. 
Episcopal  Church  and  its  supervisory  claims,  see  Porter's  Comp.     In 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  181 

been  examined  by  the  Courts.  As  it  trenches  on  the 
judicial  power,  and  may  violate  rights  akeady  vested, 
the  tendency  is  to  confine  it  within  narrow  limits 
here  also ;  such  as  the  protection  of  public  officers, 
executors,  and  trustees.^ 

The  contest  between  states  and  corporations  car- 
ried on  in  Dartmouth  College  v.  Woodward,  and  in 
Allen  V,  McKeen,  have  so  distinguished  between 
public  and  private  corporations,  as  to  put  all  col- 
leges, and  with  them  certainly  all  the  older  charita- 
ble institutions,  in  the  safe  class  of  private  charities, 
and,  in  a  certain  sense,  beyond  the  reach  of  the  Leg- 
islature. The  statute  making  all  incorporations, 
granted  since  March  11,  1831,  liable  to  amendment, 
alteration,  and  repeal  by  the  General  Court,  was  in- 
tended to  bring  modern  incorporated  charities  into 
new  and  intimate  relations  with  the  Legislature. 
How  far  it  may  accomplish  the  object  remains  to  be 
seen ;  whatever  may  be  the  result,  the  cases  cited 
have  their  importance  in  this  connection.^ 

§  13.    With  salutary  recollections  of  the  ecclesi- 

New  York,  the  claim  to  visit  Union  College  and  alter  its  charter 
was  discussed  in  1823,  in  pamphlets;  and  again  in,  1853,  learned 
opinions  were  given  against  the  right.  For  English  efforts,  extending 
from  O'Connell's  act  in  1830  to  1860,  for  bringing  Eoman  Catholic 
trusts  under  supervision,  see  12  Law  Mag.  «&  Rev.  36.  For  reports 
of  Commissioners  on  Public  Charities,  see  documents  of  House  Rep. 
since  1860.    For  Boston  Charities,  N.  Am.  Rev.  61,  135. 

1  Davison  v.  Johonnot,  7  Met.  388 ;  Sohier  v.  Massachusetts  Hospital, 
3  Cush.  483. 

'^  General  Statutes,  ch.  68,  §  41.  Happily  we  have  not  the  embar- 
rassment of  the  Church  of  England,  which  desires  a  reform  of  con- 
vocation, while  it  fears  Parliament,  which  is  to  make  the  reformation. 
11  Church  Review,  1. 

16 


182  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

astical  tendency  to  accumulate,  many  institutions 
specially  incorporated  for  literary,  benevolent,  and 
religious  purposes,  are  limited  to  a  fixed  capital  or  a 
fixed  income  ;  otherwise  they  might  claim  exemption 
under  the  rules  of  law  which  do  not  prohibit  chari- 
table perpetuities  or  charitable  accumulations.  The 
statutes  limit  a  church  to  a  yearly  income  of  two 
thousand  dollars  ;  the  overseers  of  each  monthly 
meeting  of  Friends  to  five  thousand  ;  and  those 
associating  themselves  under  ch.  23,  for  religious, 
charitable,  and  educational  purposes,  may  hold 
real  and  personal  estate  not  exceeding  one  hundred 
thousand  dollars.  To  religious  societies  there  is 
no  limit  set  as  to  capital  or  income.^  As  we  bring 
this  chapter  to  a  close,  we  are  impressed  with  the 
great  number  of  incorporations,  quasi  incorporations, 
and  aggregate  bodies,  to  which  our  statute  or  com- 
mon law  of  charitable  trusts  may  become  applicable 
in  some  stage  of  their  existence.  Without  effort,  we 
recall  ministers  and  ministerial  fund  associations, 
deacons,  parishes,  and  religious  societies,  to  be  num- 
bered by  hundreds ;  colleges,  academies,  and  schools, 
scientific,  benevolent,  theological,  and  missionary 
institutions,  in  lesser  groups. 

Whether  we  confine  our  attention  to  those  incor- 
porated by  general  or  special  statutes,  the  array  is 
large  enough ;  for  there  is  hardly  a  combination  of 
men  and  women  by  which  the  world  may  be  blessed 
and  elevated  that  has  failed  to  receive  the  unction  of 

1  Gen.  St.  ch.  30,  §  28;  ch.  31,  §  7,  8.  For  English  and  New  York 
laws  on  this  subject,  see  Thellusson  v.  Woodford,  4  Vesey,318 ;  2  Kent, 
2.'53 ;  4  Kent  Com.  286 ;  13  Law  Mag.  and  Rev.  202. 


■MASSACHUSETTS   ECCLESIASTICAL  LAW.  183 

incorporation  in  Massachusetts,  excepting  always 
those  earliest,  divinest  associations,  the  family  and 
the  church.^ 

1  The  English  Charitable  Commissioners'  Reports,  1844,  extended 
to  38  fol.  vols.,  embracing  twenty-five  thousand  trusts  of  less  than  fifty 
pounds  income.  1  Law  Mag.  and  Rev.  The  acts,  orders,  and 
schemes  relating  to  charitable  trusts  and  uses,  schools  and  gram- 
mar schools,  growing  out  of  these  Reports,  may  be  found  in  Tudor, 
parts  2  and  3.  The  special  acts  incorporating  Massachusetts  charitable, 
literary,  and  religious  institutions,  from  1780  to  1847,  may  be  found 
Senate  Doc.  90,  for  1836;  House  Doc.  32,  for  1848.  Upwards  of 
seven  hundred  special  acts  are  enumei-ated.  The  ecclesiastical  and 
the  voluntary  methods  of  supporting  missionary  and  benevolent  socie- 
ties are  discussed,  Repertory,  1837,  485  ;  do.  1838,  257  ;  Bib.  Repos- 
itory, 1837,  101  ;  do.  1844,  416;  8  Chr.  Rev.  321  ;  Church  Review 
xi.  455,  xiii.  390.  The  repeal  of  church  and  state  connections,  appears 
to  have  given  a  new  impulse  to  voluntary  associations. 


N 


CHAPTER     XIV. 

Marriage  —  Celebrated  by  Justices  of  the  Peace  or  Ordained  Ministers  —  Minis- 
ters cla-ssified — Publishment  —  Consent  of  Parents — Clerk's  Record  —  Penal- 
ties incurred  — Age  of  Consent  —  Capacity  —  Color  —  Ceremony  —  Minister's 
Record. 

§  1.  It  is  sometimes  said  that  the  Council  of  Trent 
prescribed  that  all  marriages  should  take  place  in  the 
presence  of  a  clergyman ;  but  the  prescription  was 
not  adopted  in  England,  and  therefore  not  brought 
by  our  ancestors  to  this  country.  A  more  exact 
account  of  the  matter  is,  that,  until  the  Reformation, 
aU  lawful  marriages  were  solemnized  by  a  clergy- 
man episcopally  ordained,  and  all  questions  of 
marriage  belonged  to  the  ecclesiastical  courts.  Un- 
der the  recollection  of  ecclesiastical  oppression  in 
England,  ministers  in  Massachusetts  were  not  author- 
ized to  solemnize  marriages  by  the  Colony  laws.  At 
length,  in  1695,  along  with  justices  of  the  peace,  the 
"  ordained  minister"  might  join  persons  in  marriage, 
"  in  the  town  where  he  was  settled  ;  but  one  or  both 
the  parties  must  be  inhabitants  or  residents  of  the 
town."  ^ 

In  the  main,  these  features  are  retained   in   the 

1  Milford  V.  Worcester,  7  Mass.  48.  Before  a.  d.  1123,  a  clero:yman 
might  be  married  validly ;  yet  the  higher  clergy  objected  until  the 
Reformation.  For  English  Marriage  Laws,  see  Beamish  v.  Beamish, 
Ho.  Lords.  For  American,  see  Am.  Law  Register,  Jan.  and  Feb. 
1864. 

(184) 


MASSACHUSETTS    ECCLESIASTICAL   LAW.  185 

marriage  laws  now.  The  "  marriage  laws,"  will 
be  found  in  the  Appendix^  It  will  seen  from  §  14, 
which  follows  the  Revised  Statutes,  that  marriages 
may  be  solemnized  by  a  justice  of  the  peace,  in  the 
county  for  which  he  is  appointed,  when  either  of  the 
parties  resides  in  the  same  county.  And  by  "  any 
minister  of  the  gospel,  ordained  according  to  the 
usage  of  his  denomination,  who  resides  within  the 
State,  and  continues  to  perform  the  functions  of  his 
office."  The  apparent  generality  of  the  clause  al- 
lowing ministers  to  marry  "  throughout  the  State," 
is  qualified  by  the  requirement  that  all  marriages  are 
to  be  solemnized  in  the  city  or  town  in  which  the 
person  solemnizing  them  resides,  "  or  in  which  one 
or  both  the  parties  to  be  married  reside." 

§  2.  Happily,  ministers,  under  the  general  statutes  of 
1860,  are  relieved  from  anxious  inquiries  that  used  to 
be  made  about  "  public  ministers,"  "  ordained  minis- 
ters," "  settled  ministers,"  and  "  stated  ministers." 
Courts  are  not  called  to  examine  such  questions  as 
were  decided  in  1822,  —  whether  a  minister  was  suf- 
ficiently "  stated  and  ordained  "  to  entitle  him  to  sol- 
emnize a  marriage,  who  had  been  ordained  according 
to  the  form  observed  in  the  Baptist  churches,  and  had 
been  afterwards  engaged  by  two  Baptist  societies  to 
preach  to.them  alternately.  Whether  a  Congregation- 
al minister,  ordained  in  Connecticut,  and  "installed" 
over  the  First  Parish  in  Granby,  Massachusetts,  could 
be  called  "  a  settled  minister  "  (and  thereby  exempt 
from  taxation),  who,  after  a  steady  service  of  five 


1  Gen.  St.  ch.  106.     Appendix  F. 
16* 


186  MASSACHUSETTS  ECCLESIASTICAL  LAW. 

and  twenty  years  in  the  town  of  Granby,  on  a  divi- 
sion of  the  parish,  accepted  a  call  from  the  West 
Parish  of  Granby,  but  was  not  installed  over  said 
"West  Parish.^ 

The  law  in  1860,  however,  still  retains  certain  dis- 
tinctions and  classifications  of  ministers  :  for  exam- 
ple, it  allows  "  any  minister  of  the  gospel  "  to  attend 
a  prisoner  in  his  illness,  and  to  be  present  at  his  exe- 
cution, whom  the  prisoner  desires ;  and  it  exempts 
"  ministers  of  the  gospel,"  in  general,  from  military 
duty .2  Only  "  settled  ministers  "  are  exempt  from 
watch  and  ward,  and  from  jury  duty.  And  "  resident 
ministers "  only  are  expected  by  the  law  "  to  exert 
their  influence,  and  use  their  best  endeavors  that  the 
youth  attend  school."  ^  Who  is  considered  by  the 
court  a  "  settled  minister,"  may  be  inferred  from 
the  Charlestown  nunnery  case,  where  a  clergyman 
of  the  Methodist  Episcopal  Church,  of  the  ''local 
connection,"  preaching,  when  called  upon  by  churches 
within  a  convenient  distance  from  his  residence,  was 
deemed  a  "  settled  minister,"  exempt  from  jury  duty. 
Also  from  the  case  of  Bellingham,  already  cited  in 
the  chapter  on  ministers.^ 

§  3.  If  we  turn  from  the  officers  who  may  solem- 
nize marriages  in  Massachusetts  to  the  preliminaries 
and  circumstances  of  the  marriage  contract,  we  shall 

1  Commonwealth  v.  Spooncr,  1  Pick.  234  ;  Gridley  v.  Clark,  2  Pick. 
403.  The  exemption  of  ministers  and  college  officers  from  taxes 
ceased  by  act  of  June  12,  1829. 

2  Gen.  St.  ch.  178,  §  40 ;  ch.  174,  §  27  ;  ch.  13,  §  9. 
8  Gen.  St.  ch.  23,  §  6  ;  ch.  132,  §  2  ;  ch.  38,  §  11. 

*  Commonwealth  v.  Buzzell,  16  Pick.  153;  Bellingliam  v.  Boylston, 
4  Cush.  553. 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  18T 

find,  in  the  language  of  Nathan  Dane,  that  marriage 
"  has  been  ever  regulated,  in  Massachusetts,  by  stat- 
ute law."  The  rudiments  of  the  marriage  law, 
along  with  other  salutary  laws,  may  be  found  in  the 
following  entry  in  the  Massachusetts  Records  of 
Sept.  9,  1639,  a  long  time  before  officers  for  solem- 
nizing marriages  were  appointed  :  "  No  person  shall 
be  joined  in  marriage  before  the  intention  of  the 
parties  hath  been  three  times  published,  at  public 
lecture,  or  town  meeting,  in  both  the  towns  where 
the  parties  do  ordinarily  reside.  K  there  is  no  lec- 
ture, then  the  same  intention  be  set  up  upon  some 
post  standing  in  public  view,  for  fourteen  days." 
Soon  after  there  follows  an  order,  "that  there  be 
records  kept  of  wills,  days  of  marriage,  and  death  of 
every  person,  and  men's  houses  and  lands.  And 
that  Mi\  Stephen  Winthrop  be  chosen  to  record 
things."  ^ 

In  the  statute  of  1695  is  a  new  feature,  which  has 
also  retained  its  place  along  \Yith  "publishment." 
No  persons  are  to  be  joined  in  marriage  "  without 
evident  signification  that  the  parents  or  guar- 
dians of  males  under  twenty-one,  and  females 
under  eighteen,  were  knowing  of  or  consenting 
to  such  mamage,  under  the  penalty  of  forfeit- 
ing fifty  pounds  to  the  county."  ^  The  laws  of 
1786  were  more  specific.  Intentions  were  to  be 
declared   "at   three   pubHc   religious    meetings,   on 

1  1  Mass.  Kecords,  275.     For  the  Thursday  Lecture,  where  publish- 
ments used  to  be  made,  see  36  Examiner,  24 

2  7  Wm.  3,  ch.  6. 


188  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

different  days,  at  three  days'  distance,  exclusively 
in  the  town  where  the  parties  respectively  live ;  or 
have  their  intentions  posted  up  fourteen  days."  For 
males  under  twenty-one  and  females  under  eighteen, 
the  assent  of  parents  or  guardians,  "  if  within  the 
State,  must  be  had." 

The  marriage  laws,  recast  in  1834,  and  embodied 
in  the  Revised  Statutes,  retain  the  main  features  of 
the  early  law ;  allowing  parties  to  enter  their  inten- 
tions fourteen  days  before  marriage,  or  make  a  public 
proclamation  at  three  public  religious  meetings  on 
different  days ;  said  meetings  not  less  than  three  days 
distance  from  each  other.  Under  the  Revised  Stat- 
utes of  1836,  the  clerk  or  registrar  was  to  furnish 
the  certificate  of  publication  for  the  parties ;  and  the 
minister  or  magistrate  in  whose  presence  the  mar- 
riage was  to  be  contracted  was  to  have  the  certificate 
of  the  clerk  or  registrar  in  his  hands,  before  he  sol- 
emnized the  marriage.^ 

§  4.  Whatever  changes  were  made  in  the  law  after 
1836,  in  regard  to  publication  and  the  clerk's  cer- 
tificate, appear  in  the  General  Statutes,  ch.  106,  cited 
in  the  Appendix.  It  would  seem  that  one  publication 
only  is  now  necessary  ;  that  the  decent  interval  of 
fourteen  days  between  the  publication  and  ceremony, 
required  for  more  than  two  hundred  years,  is  now 
dispensed  with  ;  and  parties  may  have  the  ceremony 
performed  before  the  ink  is  dry  on  the  clerk's  certifi- 
cate of  publication.  It  would  seem  also  that  there  is 
now  no  forbidding  of  banns  in  the  presence  of  the 

1  St.  1834,  ch.  177,  183;  Rev.  St.  ch.  7.5. 


MASSACHUSETTS   ECCLESIASTICAL   LAW.  189 

clerk  ;  no  trial  of  that  issue.  But  the  clerk  (sec.  8) 
issues  the  certificate  containing  the  facts  "  required 
by  law  to  be  ascertained  and  recorded,  except  those 
respecting  the  person  by  whom  the  marriage  is  to  be 
solemnized."  The  complete  list  of  facts  "  to  be  as- 
certained and  recorded "  is  as  follows :  "  The  date 
of  the  marriage,  the  place,  the  name,  residence,  and 
official  station  of  the  person  by  whom  married.  The 
names  of  the  parties,  their  places  of  birth,  the  resi- 
dence of  each,  the  age  and  color  of  each,  the  condition 
whether  single  or  widowed,  of  each,  the  occupation, 
the  names  of  the  parents,  and  the  date  of  the 
record."  ^ 

The  clerk  is  liable,  by  sec.  9,  to  a  penalty  if  he 
issues  the  certificate  to  males  under  twenty-one  and 
females  under  eighteen,  without  the  application  or 
consent  in  writing  of  parents,  master,  or  guardian,  if 
in  this  State,  and  competent  to  act.  Magistrates  and 
ministers  are  also  forbidden,  in  sec.  13,  to  solemnize 
a  marriage  of  parties  under  twenty-one  and  eighteen 
without  such  consent.  The  magistrate  or  minister  is 
forbidden,  if  he  have  "  reasonable  cause  to  suppose  " 
either  of  the  parties  under  the  age  required.  The 
phraseology,  "  reasonable  cause  to  suppose,"  requir- 
ing that  the  magistrate  or  minister  at  least  inquire 
the  age  of  parties,  if  he  has  doubts,  after  the  clerk's 
certificate  has  been  placed  in  his  hands. 

By  sec.  16,  the  minister  or  magistrate  celebrating 
the  marriage  keeps  himself  a  record  of  the  marriage, 
corresponding  to  the  one  above  described;  and 
he  also,  between  the  1st  and  the  10th  of  each  month, 

1  Gen.  St.  ch.  21,  §  1. 


190  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

sends  a  copy  of  his  own  record,  for  the  month 
preceding,  to  the  clerk  or  registrar,  under  a  penalty. 
The  theory  of  the  statute  is,  that  the  married  parties 
keep  the  certificate  thus  made  out  for  them  by  the 
clerk  and  minister,  as  original  proof  of  their  mar- 
riage ;  while  the  minister  makes  his  own  record, 
and  the  town  clerk  his  record,  as  additional  proof 
of  the  marriage  of  the  parties,  to  be  resorted  to  as 
occasion  may  require. 

Besides  the  penalties,  sec.  16,  for  neglecting  to 
make  returns  to  the  clerk,  the  party  solemnizing  the 
marriage  is,  by  sec.  19,  exposed  to  a  penalty  for 
joining  persons  in  marriage  contrary  to  the  provis- 
ions of  the  whole  chap.  106,  "  knowing  that  the 
marriage  is  not  duly  authorized."  Under  this 
guarded  language,  the  officer  or  minister  examin- 
ing the  clerk's  certificate,  and  making  reasonable 
inquiry,  can  hardly  incur  the  penalty  of  marrying 
those  who  are  prohibited  from  marrying  by  the  first 
five  sections  of  the  statute.  It  may,  however,  be 
some  rehef  to  a  conscientious  minister  or  magistrate 
to  know  that  he  is  not  exposed  to  the  various 
penalties  under  sees.  13,  16,  and  19,  unless  suit 
is  commenced  within  two  years  after  the  error  has 
been  committed.^ 

If  the  minister  is  not  by  nature  a  recorder,  it 
may  add  to  his  diligence  to  know  that  section  21st 
of  the  marriage  act  makes  him  a  certifying  officer  at 
the  least,  by  allowing  his  record,  "  made  and  kept  as 
prescribed  by  law,"  or  a  certified  copy,  presumptive 

1  General  Statutes,  ch.  155,  sec.  21. 


MASSACHUSETTS   ECCLESIASTICAL   LAW.  191 

evidence  of  marriage,  in  all  courts  and  places.  It  is 
owing  to  the  neglect  of  ministers  in  performing  the 
double  duty  of  keeping  their  own  record  of  mar- 
riages, and  sending  to  the  town  clerk,  monthly,  a 
copy  of  such  record,  that  so  many  widows  of  soldiers 
are  obliged  to  rely  upon  the  affidavits  of  third  par- 
ties to  prove  their  right  to  the  widow's  pension.  On 
application  to  the  minister  and  the  town  clerk,  these 
widows  find  too  often  that  neither  town  clerk  nor 
minister  has  kept  any  record  of  marriages  whatever. 

§  7.  Questions  as  to  marriages  valid  in  Massa- 
chusetts, because  vafidly  celebrated  in  other  states 
or  countries,  do  not  belong  to  this  discussion  ;  nor 
questions  as  to  marriages  valid,  notwithstanding  the 
penalty  attached  here  to  the  ofl[icer  or  minister  cele- 
brating them  improperly. 

It  may  be  of  interest  to  parents  and  guardians  to 
know  that  the  age  of  consent  of  parties  and  of  valid 
marriage,  in  this  Commonwealth,  is  twelve  for 
females  and  fourteen  for  males,  as  at  common  law.^ 
To  pursue  the  subject  of  minimums,  the  officer  or 
minister  officiating  wiH  remember  that  the  decision 
of  1815,  that  "  one  not  having  sufficient  understand- 
ing to  be  able  to  make  a  valid  contract  respecting 
property,  or  to  deal  with  discretion  in  the  common 
affairs  of  life,  cannot  contract  mamage,"  has  been 
softened  in  favor  of  our  generation ;  and  now  the 
exclusion,  section  5th,  applies  to  "  insane  persons  and 
idiots."  2     He  may  also  remember  that  the  marriage 

1  Parton  v.  Hervey,  1  Gray,  119. 

2  Middleborough  v.  Rochester,  12  Mass.  363. 


192  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

"  betwixte  Englishe  and  Indeans,"  which  exercised 
the  General  Court  in  1634,  and  passed  into  a  prohibi- 
tion, was  repealed  in  1843  ;  and  now  there  is  no  pro- 
hibition relating  to  the  color  and  race  of  the  candi- 
dates.^ 

It  may  be  of  interest  to  know  what  is  the  mini- 
mum of  ceremony  required  by  law.  In  England,  it 
was  once  held  that  a  clergyman  in  orders,  using  the 
forrns  prescribed  by  the  Prayer  Book,  might,  without 
witnesses,  perform  the  ceremony  for  himself.  In 
Massachusetts,  parties  capable  of  contracting  mar- 
riage were  heretofore  held  not  validly  married,  who 
went  before  a  justice,  provided  with  the  proper 
certificate,  declaring  then-  intentions  of  marriage,  the 
justice,  however,  declining  to  make  a  record,  or  take 
any  official  notice  of  the  transaction.^  The  evil 
consequences  that  might  flow  from  this  decision, 
made  in  1810,  depriving  the  wife  of  dower,  and  her 
children  of  heritable  blood,  were  cured  by  reasona- 
ble provisions  in  behalf  of  parties  acting  bond  fide, 
contained  in  the  Revised  Statutes  and  the  General 
Statutes  of  1860.  Considering  how  many  are  the 
chances  that  the  clerk's  entry  or  his  certificate,  or 
the  minister's  conduct,  may  be  informal,  very  sad 
would  be  the  results  of  too  rigorous  a  marriage  law.^ 


1  For  Legislative  reasons  for  this  change,  see  House  Doc.  1841, 
No.  7. 

2  Beamish  v.  Beamish,  Jurist,  Nov.  1855.  But  this  has  been  over- 
ruled in  the  Privy  Council.  Milford  v.  Worcester,  7  Mass.  48  ;  Gen. 
St.  ch.  106,  §  20. 

3  For  other  topics  connected  with   marriage,  see  ch.  17.  ^  9. 

17 


CHAPTER  XV. 

Penal  Laws  —  Observance  of  the  Lord's  Day,  Preamble,  Decisions  —  Blasphemy, 
Kneeland's  Case,  Rights  of  Discussion  —  Atheists,  their  Exclusion,  Thurs- 
ton's Case. 

§  1.  The  penal  and  prohibitory  laws  which  require 
notice  are  not  numerous :  they  relate  principally  to 
judicial  oaths,  blasphemy,  and  the  observance  of 
the  Lord's  Day.  Under  the  Colony  Laws, ''  Parents 
and  governors  of  children  above  seven  years  old," 
playing  in  the  streets  on  the  Lord's  Day,  were  liable 
to  be  admonished ;  the  General  Court  at  the  same 
time  gave  notice  that  they  did  not  thereby  "  approve 
of  younger  children  in  evil."  "  All  youths  and  maids 
above  fourteen,"  were  liable  to  personal  admonition.^ 
The  provision  in  1639,  that  all  labor  should  "  sur- 
cease "  at  three  o'clock  Saturday  afternoon,  accom- 
panied as  it  was  by  "  catechizing,"  could  hardly 
be  deemed  an  alleviation  to  these  strictnesses.  The 
spirit  of  the  grave  period  following  the  Revolu- 
tion is  well  expressed  in  the  preamble  of  the  stat- 
ute, combining  various  acts  for  the  observance  of 
the  Lord's  Day,  then  extending  from  midnight  of 
Saturday  to  sundown :  "  Whereas  the  observance 
of  the  Lord's  Day  is  highly  promotive  of  the  wel- 
fare of  a  community,  by  affording  necessary  seasons 


1  Mass.  Rec.  3.  316. 
17  (193) 


194  MASSACHUSETTS  ECCLESIASTICAL    LAW. 

of  relaxatioQ  from  labor  and  the  cares  of  business  ; 
for  moral  reflections  and  conversation  on  the  duties 
of  life,  and  the  frequent  errors  of  human  conduct ; 
for  public  and  private  worship  of  the  Maker,  Govern- 
or and  Judge  of  the  world,  and  for  those  acts  of  char- 
ity which  support  and  adorn  a  Christian  society  ;  and 
whereas  some  thoughtless  and  irreligious  persons,  in- 
attentive to  the  duties  and  benefits  of  the  Lord's  Day, 
profane  the  same  by  unnecessarily  pursuing  their 
worldly  business  and  recreations  on  that  day,  to 
their  own  great  damage  as  members  of  a  Christian 
society,  to  the  great  disturbance  of  well  disposed 
persons,  and  to  the  great  damage  of  the  commu- 
nity by  producing  dissipation  of  manners  and 
immoralities  of  life,"  be  it  therefore  enacted.^  It 
is  in  laws  of  this  class  that  we  most  feel  the 
want  of  the  ancient  preamble.  In  our  days  of 
codification,  revision,  and  compression,  these  pream- 
bles are  all  omitted ;  though  they  speak  with  a 
force  and  encouragement  of  their  own  to  the  heart 
of  the  loyal  citizen,  whatever  may  be  said  of  the 
need  of  bald  penalties  for  transgressors.^ 

Our  statute  for  the  observance  of  the  Lord's 
Day  contains  the  prohibition,  under  a  penalty,  of 
keeping  open  on  the  Lord's  Day,  now  extending 
from  midnight  to  midnight,  the  shop,  warehouse,  or 
workhouse;  the  doing  any  manner  of  labor,  busi- 
ness, or  work,  except  works  of  necessity  or  charity  ; 
very  much  as  they  are  to  be  found  in  the  Revised 

1  St.  1791,  ch.  58. 

'■^  The  proclamations  for  fasts  and  tlianksgivings  of  the  Continental 
Congress  are  highly  commended,  6  Monthly  Spectator,  34. 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  195 

Statutes  of  1836,  and  earlier  laws.  They  prohibit, 
under  a  penalty,  travelling  on  the  Lord's  Day,  except 
from  "  necessity  or  charity."  Also,  the  service  or 
execution  of  any  civil  process  under  any  circum- 
stances. Specific  penalties  for  being  present  at  any 
dancing  or  public  diversion,  show,  or  entertainment, 
or  taking  any  part  in  any  firing  of  guns,  fishing, 
fowling,  sport,  game,  or  play,  on  the  Lord's  Day,  are 
provided  in  the  statute.  Sheriffs,  grand  jurors,  and 
constables  must  inquire  into  and  inform  of  all  the 
above  offences,  and  cause  the  law  to  be  carried  into 
effect.1 

§  2.  These  venerable  laws,  having  deep  founda- 
tions in  the  religious  and  civil  nature  of  man, 
have  received  an  enlightened  construction  by  the 
Supreme  Judicial  Court.  It  was  early  decided 
that  one  carrying  the  mail,  though  he  violated  the 
State  law,  was  not  indictable,  being  protected  by 
his  contract  with  the  United  States  ;  but  the  pas- 
sengers in  his  stage  are  not  thereby  protected  ;  nor 
the  driver,  "  if  he  blew  his  horn  to  the  disturbance  of 
serious  people,  either  at  public  worship  or  in  their 
own  houses,"  says  Chief  Justice  Parsons.^ 

1  See  Appendix  for  Genl.  St.,  ch.  84.  Laws,  1865,  ch.  2.53.  A  col- 
lection of  the  laws,  1814,  may  be  found  in  the  "Middlesex  Convocation 
for  suppressing  Violations."  Athenteum  Pamphlets,  ch.  161.  Later 
efforts  to  promote  the  observance  may  be  found,  Mass.  Genl.  Ass'n,  1831, 
1833.     Am.  Theo.  Rev.  1862,  296.     Repertory,  1863,  560. 

2  Commonwealth  v.  Knox.  6  Mass.,  76.  Calvin,  commenting-  on 
Exodus  XX.  10,  says  :  "  It  was  not  lawful  forjudges  to  give  a  hearing 
to  two  litigants ;  but,  if  any  one  had  violently  assaulted  his  neighbor,  it 
was  allowable  to  prevent  the  injury,  and  give  relief  to  the  unoffending 
person."     Harmony  of  Pentateuch,  ii.  438.     The  question  whether  a 


196  MASSACHUSETTS  ECCLESIASTICAL  LAW. 

On  the  principle  that  a  penalty  annexed  to  an  act 
by  a  statute  implies  a  prohibition,  and  renders  the  act 
itself  illegal,  combined  with  the  other  principle,  that 
the  law  wdll  not  assist  one  to  recover  who  has  to 
ground  his  action  on  a  violation  of  law,  it  was  held, 
that  one  travelling  on  the  Lord's  Day,  not  from 
"  necessity  or  charity,"  cannot  recover  from  a  town 
damages  incurred  by  reason  of  a  defect  in  the  high- 
way ;  and  the  burden  of  proof  is  on  the  traveller  to 
show  the  "  necessity  or  charity "  of  his  travels.^ 
The  Courts,  construing  the  word  "necessary,"  say 
we  are  not  to  understand  a  physical  and  absolute 
necessity,  but  a  moral  fitness  or  propriety  of  the 
work,  under  the  circumstances  of  any  particular  case. 
And  they  held  a  town  liable  for  an  injury  occurring 
on  a  Monday  morning,  through  the  town's  failure  to 
mend  the  road,  or  guard  against  the  injury  on  Sun- 
day, which  was  a  necessary  work,  say  the  Court.- 
They  have  also  very  properly  refused  to  allow  one 
who  has  received  payment  on  Sunday,  to  keep  the 
money,  and  treat  it  in  his  defence  as  no  payment.^ 

When  the  Lord's  Day  is  violated  by  transactions 
that  have  not  the  excuse  of  "  necessity  or  charity," 
the  effects  are  quite  positive  and  far  reacliing.  This 
will  be  seen  in  the  following  cases:  Two  parties 
exchange  horses  on  the  Lord's  Day ;  one  deceives  the 

jury  can  render  a  verdict  on  Sunday  is  examined  in  the  Law  Re- 
porter, 13,  541.  As  to  judicial  acts  which  are  void,  and  ministerial 
acts  which  are  valid,  done  on  Sunday,  see  Johnson  v.  Day,  17  Pick. 
109. 

1  Bosworth  V.  Swanzcy,  10  Met.  363. 

2  Flagg  V.  Millbury,  4  Cush.  243. 
^  Johnson  v.  Willis,  7  Gray,   164. 


MASSACHUSETTS   ECCLESIASTICAL   LAW.  197 

other;  the  law  abhors  deceit,  and  often  strains  a 
point  to  rectify  the  injury ;  yet,  as  both  parties  are  in 
pari  delictu  by  a  breach  of  the  Lord's  Day,  no  action 
lies.^  On  the  Lord's  Day,  the  owner  of  a  horse 
knowingly  lets  him  for  a  "  pleasure  drive,"  "  to  go 
to  Chelsea,"  not  for  purposes  of  "  necessity  or 
charity ; "  the  party  driving  the  horse,  beyond  the 
limits  for  which  he  was  hired,  injures  him  so  that  he 
dies ;  the  owner  cannot  recover  for  this  loss,  because, 
to  make  out  his  claim,  he  must  show  an  illegal  act 
on  his  own  part,  to  wit,  the  letting.^ 

No  action  lies,  for  the  same  reason,  upon  a  bond 
executed  on  the  Lord's  Day,  not  from  "  necessity 
or  charity,"  though  bearing  the  date  of  another  day. 
Its  execution  is  held  to  be  "  labor,  business,  or  work." 
"  The  prohibition  extends  to  all  secular  business,  to 
the  making  of  bargains,  and  all  kinds  of  trafficking. 
Whether  the  defendant  may  be  as  much  in  fault  as 
the  plaintiff,  is  not  a  subject  for  inquiry."  ^  On  the 
same  general  principles,  a  guaranty  for  the  fulfilment 
of  a  lease  cannot  be  sued  upon  if  made  on  the  Lord's 
Day,  not  being  a  work  of  "  necessity  or  charity," 
though  the  lease  guaranteed  is  executed  afterw^ard  on 
a  week  day.* 

1  Robeson  v.  French,  1 2  Met.  24. 

^  Gregg  V.  Wyman,  4  Cush.  322  ;  Way  v.  Foster,  1  Allen,  408 ; 
Welch  V.  Wesson,  6  Gray,  505. 

3  Patee  v.  Greely,  13  Met.  284.  A  will  is  not  a  contract.  See 
1  Choate's  Life  and  Writings,  135;  Bennet  v.  Brooks,  9  Allen. 

*  Merriam  v.  Steams,  10  Cush.  257.  The  various  rules  for  pleading 
and  proof  in  civil  suits,  and  indictments  for  violating  the  Lord's  Day, 
are  suggested  in  Commonwealth  v.  Maxwell,  2  Pick.  139 ;  Common- 
wealth V.  Collins,  2  Cush.  556  ;  Hill  v.  Dunham,  7  Gray,  543.  Among 
the  records  at  the  State  House  may  be  found  an  indictment,  in  179'?, 
17  * 


198  MASSACHUSETTS    ECCLESIASTICAL   LAW. 

§  3.  After  guarding  the  Lord's  Day  so  sacredly, 
that  men  might,  "  in  public  and  private,  worship  the 
Maker,  Governor,  and  Judge  of  the  world,"  it  is  not 
to  be  presumed  that  intentional  insults  to  the 
Majesty  of  Heaven  would  be  lightly  overlooked. 
Blasphemy,  which  comes  eminently  under  the  juris- 
diction of  ecclesiastical  courts,  was  punished  by 
the  Colony  laws  with  great  rigor.  Indians  were 
held  to  have  sufficient  of  the  "  light  of  nature  "  to 
make  them  amenable  to  statutes  against  blasphemy  ; 
and  their  "  powwows "  were  strictly  prohibited  in 
the  settlements  as  blasphemous. 

Blasphemy  is  enumerated  in  the  general  statutes 
among  offences  against  modesty  and  decency,  fol- 
lowing the  act  of  1782,  which  defines  the  crime 
with  more  than  usual  fulness  and  theological  care, 
thus :  "  Whoever  wilfully  blasphemes  the  holy  name 
of  God,  by  denying,  cursing,  or  contumeliously  re- 
proaching God,  his  creation,  government,  or  final 
judging  of  the  world,  or  by  cursing  or  contume- 
liously reproaching  Jesus  Christ,  or  the  Holy  Ghost, 
or  by  cursing  or  contumeliously  reproaching  the 
holy  word  of  God  contained  in  the  Holy  Scriptures, 
or  exposing  them  to  contempt  and  ridicule,  shall  be 
punished  by  imprisonment  in  the  State  prison,  not 
exceeding  two  years."  ^ 

of  the  Chief  Justice  and  his  associates  for  travelling  on  the  Lord's  Day, 
and  their  humble  petition  to  the  Legislature  to  authorize  a  nolle  prosequi. 
See  the  instructive  life  of  Govenior  Sullivan,  by  Thomas  C.  Amory, 
Esq.,  vol.  i.  p.  263. 

1  The   Scriptures  are  enumerated  St.  1782,  beginning  with  Grenesis 
and  ending  with  the  Apocalypse.     General  St.  ch.   165,  ^   19.     This 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  199 

The  constitutionality  of  this  act  against  blas- 
phemy was  examined  for  the  first  time  in  1838,  by 
the  Supreme  Judicial  Court,  in  the  case  of  Abner 
Kneeland,  on  appeal  from  the  Municipal  Court  of 
Boston.^  Kneeland  had  been  found  guilty  in  the 
Municipal  Court  in  1834.  The  printed  words  for 
which  he  was  indicted  were :  "  The  Universalists  be- 
lieve in  a  God  which  I  do  not ;  but  believe  that  their 
God,  with  all  his  moral  attributes,  aside  from  nature 
itself,  is  nothing  more  than  a  chimera  of  their  own 
imagination."  ^  On  appeal,  in  1838,  the  Supreme 
Court  say,  such  words  as  are  "  a  denial  of  God,  with 
a  bad  intent,  and  in  a  manner  calculated  to  give  just 
offence,"  are  punishable  by  the  statute,  and  the  stat- 
ute, as  thus  understood,  is  not  contrary  to  the  Decla- 
ration of  Rights,  article  second :  nor  is  the  statute 
repugnant  to  the  sixteenth  article,  which  requires  that 
the  freedom  of  the  press  should  not  be  restrained ; 
this  article  being  intended  to  allow  of  publication 
without  previous  license,  not  to  restrain  the  indict- 
ment of  obscene,  profane,  libellous,  or  malicious 
publications. 

The  Court  paid  no  attention  to  Kneeland's 
avowal  that  he  was  no  Atheist,  but  a  Pantheist ; 

whole  chapter  165,  for  substance,  was  requured  to  be  read  by  the  town 
clerk  solemnly,  at  each  March  meeting,  annually.  St.  1711.  In  this 
respect  was  imitated  the  laudable  custom  of  reading  the  Articles  of 
Confederation  for  the  New  England  Colonies,  at  each  meeting  of  the 
Delegates.     See  vols.  ix.  and  x.  Plymouth  Recoi-ds. 

1  Commonwealth  v.  Kneeland,  20  Pick.  206,  1838. 

'^  The  argument  of  his  counsel,  and  the  opinion  of  Judge  Thacher, 
who  tried  the  case,  is  contained  in  Thacher's  Criminal  Cases,  346. 


200  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

nor  to  his  distinctions,  that  the  statute  was  intended 
to  punisli  a  "  denial,"  not  a  "  disbelief,"  of  God  ; 
his  expressions  being  those  of  a  "  disbeliever  of  the 
God  of  the  Universalists,"  not  a  "  denier  of  the  God 
of  the  statute."  Kneeland's  claim  in  behalf  of 
"  Jews,  Mahomedans,  Gentoos,  and  Christians,  that 
they  might  denounce  and  ridicule  each  the  religion  of 
the  other  in  turn,"  did  not  secure  the  approval  of  the 
Court.  The  attorney  general,  intending  to  steer  clear 
of  all  controversies,  said,  without  much  reference  to 
Puritan  theology,  that  the  Legislature  intended  to 
denote  by  the  word  God,  "  the  Supreme,  Intelligent 
Being,  alike  revered  by  Christians,  Jews,  and  Ma- 
homedans, not  the  material  universe." 

The  Court,  without  commenting  on  the  theology 
of  the  statute,  are  evidently  anxious  throughout  to 
save  to  all  citizens  the  right  of  avowing  their  belief 
or  disbelief  on  proper  occasions ;  and  especially  the 
right  to  free  theological  discussion  among  the 
clergy.  It  was  this  anxiety  that  gave  rise  to  Mr.  Jus- 
tice Morton's  dissenting  opinion  in  the  case  of  Knee- 
land.^  The  right  of  free  theological  discussion,  and  to 
avow  one's  belief  or  disbelief,  were  guarded  with 
equal  care  in  a  decision  of  1811,  in  New  York, 
where  the  defendant  was  indicted  and  found  guilty 
at  common  law,  without  statute,  for  gross  and  blas- 
phemous utterances  against  Jesus  Christ.  The 
grounds  expressed  by  Chief  Justice  Kent  are :  We 

^  The  topics  of  Kneeland's  case  are  discussed  by  the  Reviews.  Blas- 
phemy, 16  Examiner,  29 ;  17  do.  23;  Free  Discussion,  Biblical  Rep- 
ertory, 1837,  368;  Pantheism,  Bib.  Rep.  1842.  English  cases  may 
be  found,  Law  Mag.  &  Rev.  viii.  247. 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  201 

are  a  Christian  people  ;  "  the  morality  of  the  country 
is  deeply  ingrafted  on  Christianity,  not  upon  the 
doctrines  or  worship  of  such  impostors  as  Mahomet 
or  the  Grand  Lama ;  therefore  such  gross  offences 
as  blasphemy  are  punishable  at  common  law."  ^ 

§  4.  It  is  not  necessary  to  examine  at  length  the 
rules  which  render,  or  used  to  render,  a  witness  incom- 
petent to  testify  in  a  court  of  justice,  from  disbelief. 
The  scrutiny  in  courts  of  men's  belief,  its  quanti- 
ty, its  quality,  is  necessarily  limited ;  at  most  exclud- 
ing those  who  do  not  believe  in  the  existence  of  a 
God,  and  that  he  will  reward  or  punish  us,  accord- 
ing to  our  deserts,  in  this  world  or  the  next.  The 
attempts  made  to  exclude  Universalists,  as  in  the 
case  of  Batchelder  in  1829,  have  not  been  favored 
in  Massachusetts.^ 

The  exclusion  of  Atheists,  in  Thurston's  case,  in 
1848,  was  objected  to  as  an  infringement  of  the  con- 
stitution,'^ which  provides  that "  no  person  shall  be  hurt, 
molested,  or  restrained  in  his  person  or  estate,  for 
worshipping  God  in  the  manner  and  season  most 
agreeable  to  the  dictates  of  his  own  conscience, 
or  for  his  religious  profession  or  sentiments."  But, 
says  Mr.  Justice  Wilde,  "  an  Atheist  is  without  any 
religion,  true  or  false  ;  the  disbelief  in  the  existence 
of  any  God  is  not  a  religious,  but  an  anti-religious, 

1  People  V.  Ruggles,  8  Johnson,  290.  Christianity  a  part  of  the 
Common  Law  of  England.  See  8  Spectator,  13  ;  11  Serg.  &  Rawle, 
400;  8  Law  Mag.  &  Rev.  247. 

2  Greenleaf  Evidence,  1,  §  368-372  ;  Thurston  v.  Whitney,  2  Cush. 
104  ;  Thacher's  Ci-im.  Trials,  191. 

3  Part  1.  art.  2. 


202  MASSACHUSETTS   ECCLESIASTICAL   LAW. 

sentiment ;  this  clause  of  the  constitution,  therefore, 
has  nothing  to  do  with  this  case. " 

The  presumption  of  law  is  strong,  that  all  men  are 
believers  to  the  extent  required  by  the  law  to  qualify 
them  to  testify.  To  prove  the  contrary,  third  persons 
must  be  introduced  ;  for  the  witness  himself  cannot 
be  examined  as  to  his  disbelief;  it  would  be  an  unau- 
thorized scrutiny  of  his  faith  ;  besides  the  very  objec- 
tion presupposes  that  the  witness  is  not  qualified  to 
be  sworn.  Where  a  witness,  of  whatever  faith  or  de- 
nomination, is  admitted  to  testify,  his  testimony  can- 
not be  disparaged  on  grounds  merely  denominational. 
The  Court,  in  the  Charlestown  convent  case,  would 
not  allow^  counsel  to  make  comparisons  undervaluing 
testimony  on  such  grounds.^ 

But  all  these  questions  as  to  modes  of  swearing, 
and  the  quantity  of  belief  necessary  to  make  a  witness 
competent,  keenly  discussed  heretofore  in  civil  and 
criminal  cases,  are  much  relieved  by  the  General  Stat- 
utes of  1860,  by  which  "  every  person,  not  a  believer  in 
any  religion,  is  required  to  testify  truly,  under  the 
pains  and  penalties  of  perjury :  and  the  evidence  of 
such  person's  disbelief  in  the  existence  of  God  may 
be  received  to  affect  his  credibility."  This  modifi- 
cation of  the  law  of  evidence  is  in  harmony  with 
the  new  rules  admitting  parties  to  testify  :  it  has  the 
merit  of  saving  rights  which  third  persons  may  have 
to  testimony ;  and  probably  it  will  give  less  notoriety 

1  Commonwealth  v.  Buzzcll,  16  Pick.  153.  For  Legislative  Reports 
on  the  convent,  see  House  Doc.  No.  37,  1835  ;  No.  22,  1841;  No.  IfiO, 
1854.  Stilt,  of  1839,  ch.  54,  and  Gen.  Stat.  eh.  164,  on  riots,  and  town 
liabilities  for  them. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  203 

than  was  given  under  the  old  rule,  excluding  Atheists, 
to  crude  and  vulgar  Atheistic  expressions  in  courts 
of  justice.^ 

The  religious  character  of  a  state  is  not  always 
most  apparent  in  her  penal  and  prohibitory  legisla- 
tion. That  of  Massachusetts  is  better  inferred  from 
the  general  strain  of  her  statutes,  so  encouraging  to 
piety,  benevolence,  and  good  learning.  In  England, 
the  Courts  are  prompt  to  say,  that  Christianity  is  a 
part  of  the  common  law.  Judges  in  New  York, 
Pennsylvania,  and  other  States  have  made  declara- 
tions nearly  equivalent.  If,  in  Massachusetts,  learned 
judges  have  been  less  demonstrative  in  their  encomi- 
ums on  the  Christian  faith,  the  general  strain  of  her 
judicial  decisions,  as  well  as  her  legislation,  leave 
no  doubt  that  Massachusetts  ever  has  been  a  Chris- 
tian Common  we  alth.2 

1  Gen.  Stat.  ch.  131,  §  12.  On  the  admission  of  Atheists,  see  15  Law 
Reporter,  301  ;  1  Chr.  Review,  479;  1  Spectator,  438  ;  also  Appleton  on 
Rules  of  Evidence. 

2  The  progress  made  during  the  last  one  hundred  years,  in  England, 
toward  ecclesiastical,  civil,  and  religious  freedom  can  be  traced  in 
May's  Constitutional  History,  vol.  ii. 


CHAPTER    XVI. 

Ecclesiastical  Covincils  —  Ipswich  ♦- Mr.  Norton  —  Committee  of  Arrangements  — 
The  General  Court. 

§  1.  When  out  ancestors  came  to  church  councils, 
there  was  no  slight  task  before  them.  With  all  their 
experience  of  papal  Rome,  the  English  hierarchy,  and 
Scotch  Presbyterianism,  it  is  doubtful  if  they  would 
have  succeeded  so  well  if  they  had  not  courageously 
followed  the  intimations  of  the  New  Testament  in 
preference  to  later  ecclesiastical  models. 

A  provincial  council  is  one  called  for  a  particular 
province;  but  prelates  and  doctors,  says  Burns,  in 
his  Ecclesiastical  Law,  "  assembled  from  all  parts 
of  the  earth,  and  gathered  by  commandment  of 
princes,  make  an  ecumenical  Council."  ^  Writers 
would  be  puzzled  to  classify  the  councils  of  our 
Puritan  and  Pilgrim  Fathers,  under  any  of  the 
headings  of  this  learned  authority. 

After  the  record  that  the  Great  and  General 
Court  of  Massachusetts,  sensible  of  the  exigence 
of  the  country  in  respect  of  salt,  in  the  year 
1655,  had  appointed  a  committee  to  attend  to  the 
same  at  the  Ship  Tavern  in  Boston ;  immediately 
after  this  appointment,  follows  in  the  Colony  Record 
the  report  of  another  committee  on  the  case  of  the 

1  Vol.  ii.  p.  30. 
(204) 


MASSACHUSETTS   ECCLESIASTICAL  LAW.  206 

churches  of  Ipswich  and  Boston,  and  the  Rev.  John 
Norton.  Instead  of  prelates  and  doctors,  appear  Mr. 
Simon  Bradstreet,  Captain  Humphrey  Atherton,  Mr. 
Richard  Russell,  and  Captain  EHezer  Fisher.  This  lay- 
committee  recommend  that  there  be  forthwith  a  coun- 
cil called  by  authority  of  the  Great  and  General  Court, 
not  on  ecclesiastical  grounds,  but  because  "  they  can 
think  of  no  better  expedient  agreeable  to  the  rule  of 
Christ,  to  compose  the  breach  and  discord  in  Ipswich 
church,  which  Ipswich  people  are  not  able  to  com- 
pose themselves,  nor  have  they  sought  advice  from 
other  churches."  Preliminaries  ended,  sounding 
words  of  Latin  might  be  expected,  "  In  cana  Domi- 
ni,''^  to  quell  the  rebellious  and  discontented.  In- 
stead of  all  that,  the  antiquarian  reads  that  the 
Great  and  General  Court  modestly  "  order  and  de- 
sire the  churches  of  Roxbury,  Dorchester,  Braintrecj 
Dedham,  Charlestown,  Cambridge,  Watertown, 
Sudbury,  Salem,  Lynn,  Newbury,  and  Rowley,  each 
to  send  two  messengers  to  consider  how  Mr.  Norton's 
way  may  be  cleared,  and  the  obstructions  removed, 
and  peace  and  quietness  procured  for  the  churches." 
All  the  prelates  and  doctors  attending  the  council 
are  commended  by  the  Court  to  the  hospitality  of 
Mr.  Robert  Paine,  of  Ipswich.  In  less  than  a  month, 
the  treasurer  is  ordered  to  pay  "  Mr.  Robert  Paine's 
bni,  24  pounds,  17  shillings,  3  pence,  for  the  ex- 
penses of  the  council  meeting  in  Ipswich,  out  of  the 
best  he  can  to  that  vaUeu."  ^ 

We  need  be  at  no  pains  to  classify  this  council 

1  Mass.  Records,  iv.  240. 


206  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

of  Ipswich.  We  may  take  it  as  a  fair  sample  of  the 
Christian  moderation  and  discernment  of  the  early 
settlers  of  Massachusetts ;  illustrating,  at  the  same 
time,  the  connection  between  the  courts  of  Massa- 
chusetts and  the  early  ecclesiastical  councils  of  the 
local  churches.  And  here  it  may  be  well  to  give 
further  details  of  the  council  of  Ipswich ;  rather, 
the  series  of  councils  relating  to  the  church  of  Ips- 
wich, and  the  first  church  of  Boston.^ 

§  2.  On  the  death  of  the  Rev.  John  Cotton,  their 
minister,  one  person,  and  one  only,  was  thought  of 
to  take  his  place  in  the  First  Church  of  Boston,  now 
the  Unitarian  Society  in  Chauncey  Place.  The 
candidate  was  consecrated  by  Mr.  Cotton's  seeing 
him  in  a*  vision,  riding  into  Boston  on  a  white  horse. 
Evidently  no  hindrance  from  the  church  of  Ipswich 
was  anticipated ;  for  the  Great  and  General  Court, 
as  early  as  May,  1653,  congratulated  themselves  by 
vote,  "  that  the  sad  breach  is  soon  to  be  made  up  by 
a  comfortable  supply,  in  that  the  Rev.  John  Norton 
of  Ipswich,  with  the  blessing  of  God  on  the  endea- 

1  The  New  England  Synods  referred  to,  chapter  6,  §  6,  were  the  nat- 
ural outgrowth  of  the  famous  European  councils.  The  Council  of 
Trent,  terminating  its  session  of  eighteen  years,  A.  D.  1563,  the  Synod 
of  Dort,  1619,  and  the  Westminster  Assembly,  1648,  came  within  the 
notice  of  the  early  Puritans.  For  their  Symbols  and  Catechisms,  see 
12  Bib.  Sac.  646  ;  2  Shedd's  History  of  Doctrine.  As  to  Trent,  Am. 
Theo.  Rev.  iv.  5«3,  and  Repertory,  1834,  59,  and  Meth.  Quarterly, 
1857,  67.  As  to  Westminster,  Repertory,  1843,  561, 1849,  59;  New 
Englander,  Oct.  1846  ;  Meth.  Quar.  1848,  577  ;  and  8  Chr.  Rev.  570- 
As  to  Dort,  62  Examiner,  i. ;  Repertory,  1832,  239.  The  Racovi- 
an,  or  early  Unitarian  symbols,  are  noticed,  50  Examiner,  202  ;  Reper- 
tory, 1833,  180.  For  the  Heidelberg  Catechism,  see  20  Bib.  Sac.  670. 
The  Apostle's  Creed,  Repertory,  1852,  602. 


MASSACHUSETTS   ECCLESIASTICAL  LAW.  207 

vors  of  the  church  in  Boston  and  his  own  good 
liking,  was  among  them."  ^  The  Court  order  the  gov 
ernor  and  speaker  of  the  deputies  to  express  to  Mr. 
Norton  how  thankful  they  are,  and  how  much  ad- 
vantage they  think  will  accrue  to  the  church,  the 
country,  and  himself,  "  if  God  shall  proceed  in  mov- 
ing him  to  proceed  "  with  the  church  of  Boston  in 
their  desires.  At  the  end  is  a  quiet  allusion  to  the 
church  of  Ipswich,  thanking  them  for  their  love  and 
self-denial  thus  far.  This  was  in  1653,  in  May.  In 
October,  1654,  we  find  Mr.  Norton  elected  a  fellow 
of  Harvard,  and  styled,  "  Mr.  Norton,  who  now 
is  teacher  at  Boston."  In  1655,  however,  it  comes 
to  be  discovered  that  Mr.  Norton  never  had  been 
dismissed  from  Ipswich.  It  was  very  true  the 
church  in  Ipswich,  at  the  first,  had  refused  point 
blank ;  but  thereupon  a  mutual  council  had  been 
called,  which  advised  their  consent.  The  church  in 
Boston  had  understood  itself  to  be  at  liberty  to 
move,  from  the  vote  of  the  Ipswich  church  in  Feb- 
ruary, 1652.  A  committee  of  the  Boston  church 
had  gone  to  Ipswich  "  to  expostulate  "  the  vote  of 
February,  1652.  But  nothing  came  of  this  "  expos- 
tulating." A  second  council  was  called  in  Novem- 
ber, 1653,  at  Boston.  To  the  result  of  this  second 
council  J  the  chm-ch  in  Ipswich  would  neither  assent 
nor  dissent,  being  equally  divided. 

Such  was  the  position  of  parties  in  Ipswich  and 
Boston,  when  the  committee,  appointed  by  the 
General    Court,   in    May,  1655,   recommended   the 

1  Mass.  Records,  iv.  132. 


208  MASSACHUSETTS    ECCLESIASTICAL  LAW. 

third  council,  described  above.  Mr.  Norton's  posi- 
tion, meanwhile,  had  become  so  awkward,  that  he 
threatened  to  leave  Boston  for  England,  if  the  par- 
ties did  not  come  to  an  understanding. 

Without  pursuing  the  details,  it  may  be  said,  that 
exercises  like  these  in  the  neighborhood  of  Boston, 
extending  over  several  years,  were  preparing  the 
Great  and  General  Court  of  Massachusetts  to  ar- 
rive at  its  ecclesiastical  prime;  meanwhile,  the 
churches  were  establishing  the  guarded,  wholesome 
supervision  of  doctrine  and  polity  by  means  of  local 
ecclesiastical  councils,  which  has  lasted  to  our  own 
times.  The  troubles  of  Mr.  Norton  were  hardly 
composed,  when  difficulties  in  regard  to  baptism  and 
church  membership,  that  agitated  the  Hartford 
church,  were  referred,  by  the  General  Court  of  Con- 
necticut, to  Massachusetts.^  The  Hartford  difficul- 
ties were  still  unsettled,  when  the  General  Court,  at 
the  close  of  the  year  1661,  called  together  in  general 
synod  at  Boston  all  the  elders  and  messengers  of 
the  churches  of  New  England,  to  consider  who  are 
the  subjects  of  baptism,  whether  there  should  be  a 
consociation  of  churches,  and  what  should  be  the 
manner  of  it.^ 

§  3.  At  the  third  Council  of  Ipswich,  we  notice 
the  General  Court  requests  the  attendance  of  the 
Governor,  Mr.  Bradstreet,  Mr.  Russell,  and   Captain 

1  Trumbull,  310;  Hubbard,  608;  Lechford,  107.  Baptism  and 
church  membership  were  among  the  causes  for  calling  the  synod  of 
1648,  2  Mass.  Records,  154. 

•^  The  synodial  strife,  the  half-way  covenant,  its  treatises,  and  lost 
treatises,  are  examined,  July,  1862,  in  the  Congregational  Quarterly. 


MASSACHUSETTS  ECCLESIASTICAL    LAW.  209 

Edward  Johnson,  "  to  prevent  any  inconvenience, 
and  more  particularly  to  impart  the  Court's  desire 
and  intentions,  if  need  require."  ^  In  those  days,  the 
Committee  of  Arrangements,  proceeding  from  the 
General  Court,  was  a  matter  of  course,  as  much  so 
as  our  Committee  on  Religious  Societies.  We  find 
this  committee  reporting  to  the  General  Court 
"  their  conceivings "  about  the  church  difficulties 
between  Cambridge  and  those  dwelling  the  other 
side  of  the  river,  now  Dedham.  And  these  "  con- 
ceivings "  of  the  committee  are  unanimously  adopted 
by  the  Court,  without  further  reference  to  a  council.^ 
Down  to  the  time  of  our  Revolution,  many  anx- 
ious questions,  now  referred  to  ecclesiastical  coun- 
cils, were  promptly  settled  by  this  Committee  of 
Arrangements  from  the  General  Court.  Among 
them  were  questions  from  towns  whose  difficul- 
ties were  chronic;  breaking  out  into  lawsuits  fifty, 
sixty,  and  seventy  years  after;  occupying  weary 
pages  in  the  reports  of  the  Supreme  Judicial  Court. 
Besides  the  difficulties  of  Andover,  already  alluded 
to,  Marlboro',  in  1660,  found  difficulty  in  harmo- 
nizing with  Mr.  Brinsmaid,  their  minister.  Easton 
had  trouble  with  the  Rev.  Mr.  Prentice,  who  refused 
to  attend  the  new  meeting-house  in  1751 ;  and  Reho- 
both  had  troubles  as  early  as  1758.^     The   Legisla- 

1  Mass.  Records,  iv.  226. 

2  Mass.  Rec.  iv.  319. 

^  Mr.  Prentiss  adhered  to  Whitefield.  For  a  sketch  of  his  theological 
and  personal  troubles  in  1744,  at  Grafton,  see  Congregational  Quar- 
terly, July,  1862.  Rehoboth  troubles  seem  to  have  outlasted  the 
Trench  War,  the  Revolution,  and  the  War  of  1812.  In  1795,  we  have 
Mr.  Ellis's  pamphlet  in  regard  to  disturbances  arising  under  the  act 
18* 


210  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

ture  was  well  called  the  Great  and  General  Court ; 
for  it  embraced  all  possible  jurisdiction,  —  political, 
civil,  ecclesiastical,  military,  naval,  and  criminal, —  a 
mass  of  powers,  which  was  at  length  distributed 
among  various  courts  and  officers ;  a  very  modest 
remnant  of  the  ecclesiastical  jurisdiction  falling  to 
the  Supreme  Judicial  Court  on  appeal,  the  rest  being 
left,  where  it  properly  belongs,  to  the  local  churches.^ 

of  1792,  which  appointed  a  committee  of  seventy -one  persons  to  man- 
age the  ministerial  fund  of  Rehoboth,  and  protect  it  from  the  precinct, 
giving  rise  to  two  hvwsuits.  Our  reports,  as  hite  as  1825,  furnish  more 
than  two  suits  on  this  same  topic.  Feb.  11,  1864,  we  notice  that  the 
House  has  passed  a  bill  in  behalf  of  the  First  Precinct  of  Rehoboth. 

1  The  General  Assemblies  of  the  Presbyterian  Church,  meeting 
annually,  are  not  unlike  our  antiquated  Great  and  General  Court  of 
Colonial  times.  For  their  complex,  ever-recurring  topics  of  spiritual, 
legal,  ecclesiastical,  executive,  and  judicial  jurisdiction,  see  Acts, 
Deliverances,  and  Testimony  of  the  Supreme  Judicatory  of  the 
Presbyterian  Church,  from  1706  to  1856,  by  Mr.  Baird,  pp.  856; 
do.  do.  from  1706  to  1860,  by  Mr.  Moore,  pp.  633. 


CHAPTER    XYIL 

Councils,  continued — Mutual,  Ex  parte  —  Notice  —  Thompsons.  Rehoboth  —  Im- 
partiality—  Reading  —  The  Offer  —  The  Protest  —  Accepting  —  Burr  -u.  Sand- 
wich —  The  Questions  examined  —  The  Evidence 

§  1.  In  the  majority  of  cases,  Massachusetts  eccle- 
siastical councils  have  been  convened  in  order  to 
express  the  mutual  fellowship  that  exists  among  the 
Congregational  churches  ;  to  aid  in  the  founding  of 
new  churches,  and  the  settling  of  ministers ;  in  general, 
to  extend  the  preaching  of  the  gospel.  Along  with 
ministerial  associations,  state  and  county  conferences 
(which  claim  no  ecclesiastical  power  whatever),  the 
aim  of  the  ecclesiastical  council,  in  the  great  majority 
of  cases,  has  been  to  promote  harmony  and  activity 
among  Christian  men,  in  regard  to  vital  Christian 
objects.^  It  is  very  rare  that  questions  of  such  diffi- 
culty have  been  presented,  that  parties  dissatisfied 
with  the  result  of  an  ecclesiastical  council  have 
thought  best  to  appeal  to  the  law  courts  for  re- 
dress. 

In  the  eight  or  ten  cases  of  appeal  reported  since 
1800,  most  of  them  due  to  our  pecuhar  parish  laws, 
and  argued  prior  to  1835,  the  Court  has  laid  down 

1  The  Boston  Review,  vol.  v.  327,  distinguishes  happily  the  Con- 
gregationalists  from  the  Independents,  on  the  ground  of  the  mutual 
Christian  fellowship  expressed  by  councils,  to  which  the  Congregational 
churches  are  addicted. 

(211) 


212  MASSACHUSETTS    ECCLESIASTICAL   LAW. 

several  rules,  which  still  bind  themselves  and  their 
suitors,  whether  the  question  under  discussion  is  one 
of  doctrine,  conduct,  salary,  or  settlement.  And  it  is 
not  amiss  to  understand  these  rules,  if  we  would 
measure  with  accuracy  the  relief  that  can  be  obtained 
from  the  Supreme  Judicial  Court  of  Massachusetts 
on  appeal  from  the  result  of  an  ecclesiastical  council. 
A  statement  of  these  rules  will  occupy  this  chapter. 

§  2.  Among  the  first  rules,  is  the  one  derived 
from  the  courts  of  common  law,  —  that  a  party, 
before  being  called  on  to  engage  in  a  council,  is  en- 
titled to  notice  :  "  a  general  statement,  at  least,  of  the 
reasons  and  grounds  for  calling  on  him  at  all  to  join 
in  a  council.  It  need  not  be  in  precise  and  technical 
language,  but  he  should  have  substantially  set  forth," 
says  Chief  Justice  Parker,  "  the  charges,  that  he  may 
exercise  his  judgment  upon  them.  For  if  the  charges 
are  frivolous,  he  is  not  obliged  to  submit  them  to  a 
council:  if  serious  and  weighty,  he  should  have  the 
opportunity  to  relinquish  his  office,  without  the  in- 
quiry." ^ 

§  3.  The  relation  of  the  minister  to  the  people, 
the  courts  regard  as  a  permanent  relation ;  to  be  dis- 
solved by  mutual  consent,  by  a  mutual  council,  or 
by  an  ex  parte  council,  where  minister  and  people 
cannot  agree  upon  a  mutual  council ;   and  that  the 

1  The  strictness  of  statement  required  by  English  statutes  is  illus- 
trated, Heath  v.  Burder,  1860,  2  Privy  Council,  670. 

The  right  of  a  party  to  a  written  statement  of  charges,  so  plain  in  our 
day,  was  (juite  overlooked  in  the  great  Salem  Council,  1734,  in  the  case 
of  Mr.  Fisk.  In  the  Eastham  Council,  1720,  Mrs.  Doane's  otter,  on 
Saturday  afternoon,  of  a  council,  twenty  miles  from  Eastham,  to  meet 
at  her  house  on  Tuesday,  was  considered  short  notice. 


MASSACHUSETTS    ECCLESIASTICAL   LAW.  213 

minister  is  entitled  to  his  salary  until  his  relation  is 
thus  dissolved.^ 

In  haste  to  get  rid  of  a  minister  who  is  not  accept- 
able, parties  sometimes  omit  to  offer  a  mutual  coun- 
cil ;  or,  under  the  impression  that  one  has  been 
already  offered,  an  ex  parte  council  is  called,  and  the 
parties  find,  when  they  reach  the  Supreme  Court, 
that  the  work  has  all  to  be  done  over  from  the  be- 
ginning. This  case  of  Thompson  v.  Rehoboth 
illustrates  the  strictness  with  which  Courts  enforce 
their  next  rule^  to  wit :  that  ministers  must  he  offered  a 
mutual  council  before  an  ex  parte  council  is  resorted  to. 
Mr.  Thompson,  by  a  majority  of  the  religious  society 

1  Ch.  7,  §  6.  Thompson  v.  Rehoboth,  7  Pick,  163.  la  this  con- 
nection, Whitmore  v.  Fourth  Congregational  Society,  Plymouth,  2 
Gray,  306.  The  Bolton  council,  in  case  of  Eev.  Mr.  GofF,  held  these 
doctrines  in  1773  ;  also,  that  male  members  of  the  church  vote  as  to  his 
dismission.     Hist.  Soc'y. 

This  doctrine  is  not  peculiar  to  Massachusetts.  In  New  York,  it  is 
held  that  a  regular  ecclesiastical  council  (or  its  equivalent)  is  a  neces- 
sary preliminary  to  the  termination  of  the  ministeiial  relation,  DifFen- 
dorf  y.  Trustees  Reformed  Ch.,  20  Johns.  12,  1810. 

Ministers,  elders,  and  deacons  of  the  Reformed  Protestant  Dutch 
Church  in  the  city  of  Albany  v.  Bradford,  8  Cowen,  457,  1826,  showing 
the  process  of  removal  in  the  Dutch  Church,  through  the  consistory, 
clasis,  particular  synod,  general  synod,  supreme  court,  and  court  of 
errors,  —  occupying  six  years,  where  the  question  of  "  common  fame  as 
a  drunkard  "  was  re-argued  not  less  than  six  times,  S.  P.  Den.  v.  Bol- 
ton, 7  Halstead,  206.  For  strictures  on  the  arguing  and  re-arguing  of 
questions,  and  the  whole  judicial  system  of  the  Presbyterian  Church,  see 
Repertory,  1832,  28  ;  1835, 179 ;  1857, 493, 497.  For  the  grades  in  Qua- 
ker ecclesiastical  courts, — the  particular,  the  preparative,  monthly,  quar- 
terly, and  yearly  meetings,  —  see  Hendricks  v.  Decow,  1  Saxton,  577, 
1832 ;  Dexter  v.  Gardner,  7  Allen,  243,  1863.  The  Methodist  Episcopal 
Church  has  its  quarterly,  annual,  and  general  conferences,  all-  appellate 
com-ts  controlled  by  the  clergy,  Porter's  Compendium,  ch.  7,  Gfliild  v. 
Richards,  16  Gray,  1860. 


214  MASSACHUSETTS  ECCLESIASTICAL    LAW. 

and  a  minority  of  the  church,  was  dismissed  from  the 
church  of  Rehoboth  on  the  9th  September.  On  the 
19th,  the  minority  of  the  church  request  him,  in  writ- 
ing, to  join  in  a  mutual  council ;  on  the  20th,  Mr. 
Thompson  declines.  The  minority  of  the  church 
then  call  an  ex  parte  council,  who  give  their  result  on 
the  12th  October,  advising  Mr.  Thompson  to  agree  to 
call  a  mutual  council. 

Within  two  weeks,  October  25th,  the  society  again 
vote  to  dismiss  Mr.  Thompson,  and  call  a  council. 
In  the  mean  time,  however  (on  the  17th  October),  Mr. 
Thompson,  in  writing,  had  declined  a  request,  made 
by  three  members  of  his  church,  to  call  a  mutual 
council  ;  the  society,  hearing  of  this,  and  taldng  it 
for  granted  that  he  would  again  decline,  proceeded 
(without  making  him  any  offer  in  writing,)  to*  call 
an  ex  parte  council.  This  ex  parte  council  met  on 
the  1st  November,  stated  in  their  result  that  a  mutual 
council  had  been  sufficiently  offered  to  Mr.  Thomp- 
son, and  advised  his  dismission.  But  the  Supreme 
Judicial  Court  held  otherwise.  Mr.  Thompson's 
declining  (say  the  Court),  in  the  manner  he  did,  the 
offer  of  a  mutual  council,  made  by  the  church  Sep- 
tember 20th,  and  again  on  the  17th  October,  did  not 
authorize  the  society,  on  the  25th  October,  to  infer 
that  he  would  decline  again  if  it  were  offered  him ; 
and  the  offer  of  a  mutual  council  should  have  been 
made  by  the  society  before  proceeding  to  the  ex  parte 
council. 

The  basis  of  the  Court's  decision  in  this  case  was 
in  accordance  with  Congregational  usages,  that  there 
can  be  no  standing  council ;  but  a  council,  mutual  or 


MASSACHUSETTS  ECCLESIASTICAL  LAW.  215 

ex  parte^  having  once  given  its  result,  is  functus 
officio^  and  all  notices  and  proceedings  expire  with 
it.i 

§  4.  When  Thompsons.  Rehoboth  came  next  before 
the  Court,  there  was  a  design  on  the  part  of  minister 
and  people  to  be  regular  in  all  respects,  especially  in 
the  matter  of  notice.  The  offer  of  a  mutual  council 
is  made  by  a  committee  of  the  society  to  Mr. 
Thompson  on  the  14th  day  of  June.  Promptly  (on 
the  15th)  Mr.  Thompson  replies,  that  it  is  impossible 
to  say  whether  he  can  join  in  the  council  until  he 
has  a  categorical  answer  from  the  society  to  two 
long,  argumentative  questions  ;  when  those  answers 
are  received,  he  will  be  happy  to  do  so.  The  Court 
held  the  offer  in  this  second  instance  sufficient,  and 
that  Mr.  Thompson  had  unreasonably  refused  to 
join  in  calling  the  council ;  the  result,  however, 
of  this  second  ex  parte  council,  held  on  the  26th 
June,  they  set  aside  in  Thompson's  favor,  on  other 
grounds. 

Mr.  Thompson  published  a  pamphlet  vindicat- 
ing himself,  with  all  the  minuteness  of  logic  pe- 
culiar to  council  pamphlets.2     For  reasons  pertain- 

1  Thompson  v.  Rehoboth,  5  Pick.  471,  1827,  For  protests  against 
standing  councils,  however  composed,  see  John  Wise's  Church  Quar- 
rel Espoused,  1710.  Also,  Breck's  case,  Springfield,  1736  ;  Prest.  Ed- 
wards, 17.50. 

2  Dr.  Abiel  Abbott,  in  his  pamphlet  containing  strictures  on  the  first 
church  of  Coventry,  Conn.,  in  1811,  insisted  that  a  consociation  was  no 
substitute  for  a  mutual  council.  The  proceedings  of  this  consociatio^ 
are  revised  by  Dr.  Thayer  of  Lancaster  and  others,  proceeding  as  a 
council  from  Massachusetts.  The  same  principle  is  maintained  in  1816 
by  the  Rev.  Luther  Wilson,  in  his  strictures  on  the  proceeding  of  a 
council  at  Brooklyn,  Conn.,  condemning  his  erroneous  views. 


216  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

ing  to  his  personal  and  theological  position,  his 
brethren  in  Reading  afterwards  put  Mr.  Thomp- 
son in  a  position  somewhat  conspicuous  in  the 
annals  of  councils.  In  1834,  he  was  summoned 
to  Reading,  with  his  Hopkinsian  brethren  from  See- 
konk,  Attleboro'  and  Wrentham,  ostensibly  to  inquire 
whether  a  member  of  the  Reading  church  had  said  of 
his  pastor  that  he  was  "  a  darn'd  rascal,"  and  of  one 
of  the  sisters  of  the  church  that  she  was  "  as  ugly  as 
the  devil ;  "  but  really  to  revise  the  proceedings  of 
Council  No.  1,  held  in  Reading,  of  which  Dr.  Woods, 
Dr.  Edwards,  and  Mr.  Badger,  of  Andover,  were 
members.  At  Reading,  as  moderator  of  Council 
No.  2,  Mr.  Thompson's  skill  was  employed  to  over- 
turn the  structure  erected  so  carefully  in  1832  in 
favor  of  peace  and  quietness ;  assisting  thereby  to 
make  Reading,  in  the  north  of  Massachusetts,  as 
renowned  as  Rehoboth  in  the  south.^ 

§  5.  It  is  not  always  plain  whose  duty  it  is  to 
take  the  first  step  in  calling  a  council.  In  the  Cam- 
den case,  where  the  minister  was  supposed  by  the 
town  to  be  dismissed,  after  they  had  given  him  six 
months'  notice  to  quit,  the  Court  held  it  to  be  the 
misfortune  of  the  town,  not  the  fault  of  the  minister, 
that  he  remained  nearly  two  years  longer  than  they 
wanted  him.  "  It  was  the  business  of  the  town, 
not  of  the  minister,   to   call  the   council ;  and  the 


^  Albeit  Essex  is  the  very  first  county  for  councils,  the  amateur 
in  council  pamphlets  rather  betakes  himself  to  the  Eastham  and 
Middleboro'  councils  for  instruction.  There  he  sees  the  points  njore 
distinctly  ;  they  are  contests  waged,  so  to  speak,  before  the  use  of 
gunpowder. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  217 

minister  could  not  be  blamed  for  not  taking  the  first 
step."  1 

We  do  not  find  that  a  minister  waives  his  rights, 
by  sending  a  protest  in  writing,  or  appearing  per- 
sonally and  denying  the  jurisdiction  of  the  coun- 
cil. The  Court  will  not  take  advantage  of  words  in 
this  connection,  however  complimentary  to  the 
council.  At  Rehoboth,  Camden,  Easton,  Sandwich, 
and  other  places,  protests  have  been  made  without 
prejudice  to  the  rights  of  parties. 

The  maxims  to  be  thus  far  drawn,  are,  that  a 
mutual  council,  in  case  of  disagreement,  is  first  to 
be  faMy  and  fully  offered,  by  the  party  whose 
duty  it  is  to  make  the  ofier;  which  offer  is  to  be 
fairly  and  fully  declined,  or  virtually  declined,  be- 
fore an  ex  parte  council  can  be  resorted  to.  It 
is  to  be  borne  in  mind,  that  councils  die  a  nat- 
ural death  when  they  give  their  result ;  and  every- 
thing in  the  nature  of  proceedings  dies  with  the 
result.  If  a  second  council,  therefore,  is  to  be 
called,  all  the  ceremonies  of  offering,  accepting,  and 
declining,  are  to  be  gone  through  with  again,  as 
if  they  had  never  been  touched.  It  will  be  re- 
membered, that  there  are  councils  "  for  advice,  in 
difficult  circumstances,"  neither  mutual  nor  ex  parte. 
There  are  also  "  collections  of  gentlemen  providen- 
tially met  together,"  which  are  not  councils.- 

^  Cochran  i'.  Camden,  15  Mass.  304. 

2  Howard  St.,  Salem,  1830;    Eastham,  1720 ;    Old  South  Library, 
1112,  861.     All  the  known  species  of  councils,  and  the  rare  perplex- 
ity of  their  doings,  in  1802,  at  Fitchburg,  may  be  seen  in  the  Life  of 
Dr.  Samuel  Worcester,  vol.  i. 
19 


218  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

§  6.  The  party  requested  to  join  in  calling  a  coun- 
cil is  required  to  make  a  prompt  answer,  and  a 
categorical  one :  otherwise,  the  other  party  will  be 
authorized  to  call  an  ex  parte  council.  The  case  of 
Burr  V.  Sandwich  illustrates  this  rule  at  large,  seem- 
ing to  sanction  more  than  the  speed  and  categorical- 
ness  usual  in  the  agricultural  districts  of  those  days. 
On  the  18th  of  July,  1811,  it  was  voted  at  town 
meeting,  in  Sandwich,  to  dismiss  Mr.  Burr:  the 
same  day,  a  committee  of  the  parish  notified  him, 
and  proposed  that  the  connection  be  dissolved  with- 
out a  council,  but  Mr.  Burr  objected.  On  the  25th 
of  July,  they  requested  him  to  engage  in  a  mutual 
council.  On  the  31st  of  July,  Mr.  Burr  replies,  that 
his  church  had  unanimously  disapproved  his  joining 
in  a  mutual  council,  but  personally  he  had  no  objec- 
tions. The  next  day,  the  committee  call  for  a  cate- 
gorical answer,  in  writing,  to  their  offer.  Mr.  Burr 
replies  that  he  does  not  feel  at  liberty  to  engage  in 
the  mutual  council  without  the  consent  of  the 
church.  On  the  13th  of  August,  an  ex  parte  council 
is  called  by  the  parish,  who  dismiss  Mr.  Burr.  This 
ex  parte  council  is  held  by  the  Court  to  be  properly 
called ;  that  the  matter  was  not  hurried  through  too 
fast;  and  that  Mr.  Burr  (if  he  was  willing  all  along, 
as  he  said  he  was,  to  have  a  mutual  council)  should 
have  joined  the  parish  in  calling  a  council ;  that  his 
church  objected  was  no  reasonable  excuse,  in  the 
eye  of  the  law,  for  not  joining  in  the  call  of  the 
council.^ 

^  In  the  case  of  Dr.  Holmes,  of  Cambridfje,  dismissed  by  an  ex 
parte  council,  the  church  insisted  that  tliey  had  not  declined  the  offer 
of  a  mutual  council.     2  Spirit  Pilgrims,  559. 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  219 

§  7.  The  style  or  title  of  an  ecclesiastical  council, 
when  addressed  by  laymen,  is,  "  The  Venerable 
Council."  The  remarks  of  Courts  are  always  com- 
plimentary towards  them.  In  this  Sandwich  case, 
Chief  Justice  Parsons  takes  evident  satisfaction  in 
quoting  from  Mr.  Burr's  letter  of  August  13th,  the 
day  the  council  was  held,  "  his  intention  to  meet 
them,  not  because  he  recognizes  their  jurisdiction, 
but  for  the  respect  he  entertains  for  them  as  Chris- 
tians, as  gentlemen  of  integrity  and  discernment, 
and  as  lovers  of  peace  and  good  order,  whose  ad- 
vice would  be  calculated  to  allay  the  turbulent  feel- 
ing of  the  parish."  The  Chief  Justice  quotes  this 
to  show  that  the  duty  of  those  calling  an  ex  parte 
council,  to  select  men  who  are  not  partial,  preju- 
diced, or  unfriendly  to  the  opposite  party,  had  been 
discharged  in  this  instance. 

Each  party  is  supposed  to  look  after  his  own 
interests;  and  the  Courts  will  not  scrutinize  very 
closely  the  materials  of  a  mutual  council  ;  actual 
partiality  must  be  proved.  But  in  ex  parte  councils 
the  Court  have  set  aside  results  that  they  would 
willingly  have  enforced  on  a  suggestion  of  a  possible 
unfairness.  In  the  Rehoboth  second  trial,  this  was 
done,  because  three  of  the  five  ministers,  composing 
this  ex  parte  council,  had  sat  on  the  first  ex  parte 
council,  which  had  come  to  an  unfavorable  result. 
''  Without  doubt,"  say  the  Com-t,  "  these  gentlemen 
believe  they  could  act  with  impartiality  towards  Mr. 
Thompson  ;  but  the  laws  look  to  the  common  prin- 
ciples of  mankind,  not  extraordinary  instances  of 
magnanimity,  which  may  enable  some  few  to  rise 


220  MASSACHUSETTS   ECCLESIASTICAL    LAW. 

above  the  common  feelings  and  prejudices  of  their 
race."  ^ 

While  the  Court  set  aside  this  peculiar  result  for 
good  reasons,  it  is  to  be  noticed  that  the  members 
of  an  ex  parte  council  are  not,  by  the  usage  of  the 
churches,  expected  to  know  nothing  of  the  circum- 
stances before  they  attend.  There  are  many  con- 
siderations removing  the  member  of  such  a  coun- 
cil from  the  position  of  a  juryman.  Such  member  is 
rather  a  combination  of  judge,  jury,  and  advocate ; 
or  better  still,  without  attempting  any  analogy  or 
combination,  he  is  a  Christian  adviser;  and  there- 
fore the  more  correct  knowledge  of  the  case  he  has, 
before  he   comes  to  the  ex  parte  council,  the  better.^ 

With  these  qualifications,  suggested  by  the  nature 
of  the  tribunal,  Chief  Justice  Parker's  application 
of  a  common-law  rule  is  not  unreasonable.  We 
often  see  judges  retiring  from  the  bench,  because 
they  have  been  of  counsel,  or  they  are  related  to 
the  parties,  or  have  an  interest  in  the  subject-matter 
of  the  suit 

§  8.  The  limitations  to  be  given  to  the  legal 
rules,   requiring   at   least   a   show   of    impartiality, 


1  Thompson  v.  Tlehoboth,  7  Pick,  165.  Charges  against  a  minister 
of  the  Episcopal  denomination  are  laid  in  writing  before  the  standing 
committee  of  the  diocese.  If  the  committee  judge  best,  they  submit 
them  to  the  bishop.  The  bishop  ap])oints  nine  ministers  of  the  dio- 
cese, from  whom  the  accused  selects  five ;  and  tliese  five  are  his  triers. 
Convention,  1846;  do.  1852. 

2  In  the  Kev.  John  Barnard's  Narrative,  1727,  are  very  shrewd  re- 
marks on  the  importance  of  calling  neighbors,  who  know  the  parties 
and  their  ways.  Also  on  curing  the  misconceptions  of  good  men. 
Historical  Society,  3d  series,  v.  228. 


MASSACHUSETTS   ECCLESIASTICAL   LAW.  221 

on  the  part  of  members  of  a  council,  together 
with  sufficient  and  fair  notice  to  parties  in  all 
stages  of  ecclesiastical  proceedings,  are  well  en- 
forced in  the  proceedings  of  Council  No.  5,  held  at 
Reading,  in  June,  1847.^  The  Reading  case,  in  none 
of  its  roots  or  branches,  came  before  the  Court ;  but 
in  the  Reading  pamphlet  will  be  found  an  exposi- 
tion, at  least  semi-judicial,  of  the  law  pertaining  to 
councils.  The  minister  of  Reading  survived  the 
opprobrium  of  being  called  "  a  darned  rascal,"  in 
1834.  All  parties  being  vindicated  by  Council 
No.  2,  proceeded,  quietly,  for  nearly  ten  years, 
without  a  council.  In  1843,  twenty-three  church 
members  wrote  the  pastor  a  respectful  letter,  re- 
questing him  to  resign.  The  troubles  arising  from 
these  twenty-three  dissatisfied  members  were  the 
occasion  of  calling  Council  No.  3,  to  inquire  if  the 
members  had  expressed  their  dissatisfaction  scriptu- 
rally ;  which  gave  both  parties  good  advice,  which 
neither  accepted.  Council  No.  4  met  in  April, 
1847  (it  was  rather  an  adjournment  of  Council  No. 
3,  for  more  than  a  year),  and  declared  they  had  no 
new  advice  to  give.  Here  was  an  emergency.  The 
minister  could  have  no  peace  so  long  as  the  twenty- 
three  dissatisfied  members  remained ;  and  the  twenty- 
three  could  take  no  comfort  so  long  as  their  minister 
sat  in  the  gate  of  the  sanctuary. 

At  length,  after  four  years'  delay,  the  minister  rid 

1  See  Reading  Council,  Pamphlet,  1847  ;  New  Englander,  Oct.  1847  ; 
"  Vindex,"  published  1848,  by  Crosby  &  Nichols. 

See  other  authorities  collected  in  Curamings'  Congregational  Dic- 
tionary, "  Councils." 

19  * 


222  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

himself  of  the  twenty-three  by  excommunication  ; 
whereupon  an  ex  parte  council,  No.  5,  was  called, 
composed  of  thirteen  ministers  and  twelve  laymen, 
who  pronounced  it  to  be  good  sense  and  good  con- 
gregational usage  that  members,  individually  or  col- 
lectively, have  a  natural  right  to  dislike  a  minister, 
and  tell  him  so  ;  and,  provided  all  things  are  done 
in  a  Christian  manner,  they  may  attempt,  by  proper 
means,  to  remove  him.  Such  proceedings  are  not  to 
be  viewed  as  offences  worthy  of  discipUne,  much  less 
excommunication.^ 

With  great  distinctness,  the  council  further  say, 
that  proceeding  to  excommunicate,  in  a  body, 
twenty-three  persons,  four  years  after  such  a  slight 
offence ;  denying  them  any  vote  at  all  on  the 
preliminary  proceedings ;  giving  those  residing  in 
the  town  short,  verbal,  indefinite  notice,  and  those  at 
a  distance  notice  by  letters  (which  did  not  reach  them 
till  after  the  excommunication  had  been  pronounced, 
and  they  had  been  declared  heathen  men  and  pub- 
licans) ;  such  proceedings  are  characterized  as 
arbitrary,  unreasonable,  and  very  far  from  Oongrega- 
tional.2 

The  fifth  Reading  Council  farther  say,  that  there 
are  no  rights  appertaining  to  ministers  who  refuse 
properly  to  discharge  the  duties  of  moderator. 
They   have    no    authority,    as    ministers,   to   retain 

1  For  the  excision  of  eleven  ministers  and  twenty-five  members  at 
Baltimore  in  1824,  for  "inveighing  against  the  discipline  of  the  Metho- 
dist Episcopal  Church,"  and  the  formation  thereupon  of  the  Methodist 
Protestant  Church,  see  Bang's  History  of  Methodism,  iii.  394. 

'■^  The  right  of  a  party  under  censure  to  a  separate  trial  is  urged.  New 
Englander,  1847,  570. 


MASSACHUSETTS    ECCLESIASTICAL   LAW.  223 

the  chair  at  the  church  meeting  when  requested 
to  leave  it.  But  that  church  meetings  must  be 
.conducted  with  a  fall  regard  to  the  common  rights 
of  men  assembled  for  religious  purposes.^ 

The  offence  of  "  lording  it  over  the  heritage," 
indicated  in  these  proceedings  at  Reading,  though 
rare  in  our  day,  was  not  uncommon  in  the  early- 
times.  In  1773,  we  find  that  Mr.  Bowman,  of 
Dorchester,  not  only  preached  "  short  sermons  and 
old  ones,"  but  "  refused  to  put  the  vote  as  moderator 
of  the  church  meeting ; "  for  which  he  was  sharply 
rebuked  by  the  venerable  council.  The  ministers  of 
Princeton,  of  Sterling,  and  of  Boylston,  in  1774, 
Tory  in  politics,  were  dismissed  for  claiming  a  veto 
power  over  the  church.^ 

§  9.  Thus  much  for  notice  and  all  preliminary 
matters.  When  the  council  is  invited,  there  is  no 
power  to  compel  them  to  convene  ;  and,  when  the 
council  is  convened,  there  is  no  power  to  compel 
them    to    act.3     The     Supreme     Court    has    never 

1  The  necessary  business  rules  of  churches  and  councils,  derived  from 
Cushing's  Manual,  are  well  stated  in  Dexter's  Congregationalism,  172. 

^  Episcopalian  embarrassments  from  disloyalty  are  illustrated  in  the 
case  of  King's  Chapel,  when  forty  of  the  sixty-six  pewholders,  with  the 
rector,  fled  in  1775,  Church  Review,  vi.  85.  Prevoost  v.  Seabury,  14; 
668.  The  Court  denied  in  1786,  in  the  case  of  Hawes  v.  Mann,  5  Mass. 
His.  Soc,  3d  Series,  51,  this  veto  power  to  the  minister,  whatever 
encouragement  the  platform  or  John  Wise  may  have  given  it.  Dr. 
Bancroft's  Half  Century  Discourse,  20  Examiner,  240.  See  in  this 
connection,  as  to  tlie  duties  of  presiding  oflBcers,  the  Murdock  cases,  7 
&  12  Pick;  also  Earle  v.  Wood,  8  Cush.  430;  also  the  Presbyterian 
cases,  Com.  v.  Green,  4  Wharton,  531  ;  and  Treas.  v.  Sturgeon,  9  Barr. 
321, 1848. 

^  Cochran  y.  Camden,  15  Mass.  301.  For  pecuHar  embarrassments 
introductory  to  the   trial  of  bishops  of  the  Episcopal  denomination, 


224  MASSACHUSETTS  ECCLESIASTICAL  LAW. 

claimed,  or  had  occasion  to  exercise,  the  compulsory- 
power  of  mandamus  over  a  minister,  or  any  collection 
of  ministers,  assembled  in  comicil.  They  compel  by 
mandamus^  certiorari^  habeas  corpus^  quo  warranto^ 
writ  of  error,  and  other  legal  process,  officers,  courts, 
and  corporations ;  but  they  have  no  occasion  to  use 
such  power  in  regard  to  councils  as  the  King's 
Bench  in  England  has  exercised  over  the  Archbishop 
of  Canterbury,  compelling  him  to  hear  and  decide  a 
cause.^ 

The  council,  mutual  or  ex  parte ^  being  fairly 
chosen  and  convened,  may  examine  into  any  mat- 
ters that  are  brought  before  them  by  the  minister 
or  the  people.  It  has  been  decided  in  several  cases 
that  they  are  not  confined  to  theological  subjects.^ 
In  Avery  v.  Tyringham,  it  is  laid  down  by  Chief 
Justice  Parsons,  broadly,  that  councils  are  estab- 
lished to  decide  "  in  all  cases  of  difficulty  and 
controversy  between  a  minister   and   his  people."  ^ 

see  Doane,  Church  Review,  xiv.  126.  Ives  do.  vi.  58.  English  bishops 
cannot  be  tried,  it  would  seem  (Colenso). 

1  A  writer  in  the  Law  Reporter,  vol.  xviii.  p.  421,  argues  that  man- 
damns  might  be  employed  to  compel  the  Episcopal  bishop  to  restore  a 
presbyter.  There  is  a  "  scandalous  contempt "  held  in  reserve  for 
offenders  against  the  consociational  plan  of  Connecticut;  and  a  tone 
of  mandamus  is  in  common  use  by  the  General  Assembly  of  the  Pres- 
byterian Church.  Repertory,  1838,  47.5.  For  mandamus,  under  the 
Methodist  Polity  in  New  York,  compelling  a  society  to  accept  .a  minis- 
ter, see  People  v.  Steele,  2  Barbour,  397,  1848. 

-  Mollis  Street  Church  o.  Pierpont,  7  Met.  490. 

^  In  colonial  times,  the  structure  and  doings  of  an  ecclesiastical 
council  engaged,  as  warmly  if  not  as  profitably,  tlie  talent  now  expended 
on  State  Rights  and  other  civil  topics.  1  Turnbull's  Cont.  310.  Coun- 
cil pamphlets,  before  the  Kevolution,  show  that  the  people  held  their 
ministers  to  an  account.  These  are  some  of  the  charges:  "Light 
behavior  ;  "  "  Not  preaching  the  doctrines  of  Grace  ;  "  "  Denying  the 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  225 

By  Ch.  Justice  Parker,  "  that  imprudence,  censo- 
riousness,  and  other  immoralities,  which  would  not, 
per  se,  work  a  forfeiture  of  office,  are  exceedingly- 
proper  to  be  submitted  to  a  council."  ^  And  Mr. 
Justice  Wilde  ^  says,  "It  is  nowhere  intimated 
that  parties  are  restricted,  in  any  respect,  in  sub- 
mitting any  difficulty  between  them."  In  Mr.  Pier- 
pont's  case,  one  of  the  principal  points  was,  had 
the  pastor  written  a  prologue  for  a  theatre,  and  if  so, 
had  he  prevaricated  about  it.  Indeed,  aU  questions, 
from  the  gravest  in  theology  to  the  lightest  in  minor 
morals  and  manners,  have  passed  under  examination 
in  these  tribunals,  —  at  one  time  presenting  a  fore- 
shadowing of  the  solemn  scenes  of  the  general  judg- 
ment ;  at  another,  bearing  a  strong  resemblance  to 
those  social  tribunals  where  judges  sit  with  cups  of 
tea  in  hand. 

President  Edwards,  in  1750,  was  dismissed  by  a 
council,  because  he  refused  to  admit  to  the  com- 
munion of  the  church  in  Northampton  those  who 
did  not,  by  their  life  and  conduct,  show  that  they 
had  been  converted,  —  a  question  at  the  threshold  of 
aU  church  integrity  and  purity.^   '  On  the  other  hand, 

inspiration  of  passages  of  Scripture ; "  "Not  preaching  the  perscA^erance 
of  saints."  Salem  Council,  1733;  Breck,  Springfield,  1736;  Newbuiy, 
1767;  Dorchester,  1773  ;  Bradford,  1 744 ;  Framinghana,  1745.  See, 
also,  the  controversial  pamphlets,  1730  to  1765,  Cleveland,  Mayhew, 
Croswell,  Col.  Choate.  To  some  settled  ministers,  the  itinerant  habits 
of  Whitefield  were  no  more  prepossessing  than  his  doctrines.  2  Specta- 
tor, 331  ;  N.  Englander,  1853,  195;  43  Examiner,  374  ;  44  do.,  367. 
A  good  specimen  of  a  doctrinal  council,  in  1781,  may  be  found  in  the 
Congregational  Quarterly  for  July,  1861. 

1  Thompson  v.  Eehoboth,  5  Pick.  499. 

■2  HoUis  V.  Pierpont,  7  Met.  499. 

3  Athenaeum  Pamphlets,  B.  24,  N.  Englander,  April,  1846. 


226  MASSACHUSETTS    ECCLESIASTICAL   LAW. 

the  disciples  of  President  Edwards,  Dr.  Bellamy,  Dr. 
Hopkins,  and  Dr.  West,  in  1779,  were  all  involved 
in  a  series  of  councils  at  Stockbridge,  which  had  for 
their  object  to  inquire  whether  Mrs.  Lavina  Dean, 
widow,  was  properly  suspended  from  the  church  for 
proceeding  to  marry  Captain  Fiske,  after  she  was 
warned  by  the  church  that  he  was  not  a  suitable 
person  for  a  church-member  to  marry  ;  which  warn- 
ing, however,  she  heeded  not,  so  much  had  the  Captain 
already  entangled  her  affections.  Captain  Fiske  and 
his  wife  looked  on,  while  council  after  council  of 
these  venerable  men  narrowly  examined  the  swarm 
of  domestic,  public,  and  ecclesiastical  questions  in- 
volved in  this  case,  which  they  were  at  last  unable 
to  solve.  All  Western  Massachusetts  and  Connect- 
icut, meantime,  were  in  a  blaze  of  excitement  at  this 
invasion  of  the  sovereign  rights  of  women,  to  marry 
whomsoever  they  choose.^ 

1  Athenffium  Pamphlets,  B.  80,  251,  C.  32.  For  unsettled  matrimo- 
nial topics,  sec  McQueen's  case,  Repertory,  1843,  457  ;  Bib.  Repository, 
1843,  188;  Malcom  on  Marriage,  16  Examiner,  52;  10  Spectator,  104. 

Circumstances  indicate  that  the  fair  sex  were  not  entirely  understood 
in  1723.  In  the  Eastham  case,  the  church  "wondered"  that  fourteen 
women,  along  with  three  men,  objected  to  "  Mr.  Osborn's  gifts."  They 
could  not  understand  the  "  backwardness  of  the  women  to  give  their 
reasons,"  publicly,  in  church  meeting,  after  the  church  had  refused  Mr. 
Stone,  their  spokesman,  pennission  to  speak  in  their  behalf;  allowing 
Medad  Woods,  however,  to  give  his  wife  a  sharp  rebuke  in  their  presence. 

The  issue  of  the  Eastham  Council  is  characteristic  and  honorable  to 
the  fair  sex.  Of  the  remonstrants,  the  three  males  yielded  at  once  ; 
next,  all  the  women  except  Mrs.  Doane.  She,  a  feeble  woman  "  with 
a  sore  leg,"  vindicated,  to  the  end,  her  right  to  be  heard  ;  a  valuable 
right,  which  had  been  maintained  at  Weymouth  in  1635,  says  Governor 
Wmthrop,  "  by  a  woman  of  distempered  speech."  Old  South  Library 
681 ;  1  Winthrop  Journal,  338. 


MASSACHUSETTS  ECCLESIASTICAL   LAW.  227 

§  10.  There  is  nothing  to  show  that  councils  were 
ever,  like  the  courts  of  law,  held  to  the  strict  rules 
of  testimony.  For  example,  in  councils,  the  best 
kind  of  testimony  need  not  be  produced,  or  its  ab- 
sence .accounted  for,  before  secondary  evidence  can 
be  offered.  Parties  in  interest  are  not  excluded,  on 
account  of  bias,  from  giving  their  testimony ;  hus- 
band and  wife  are  not  prevented  from  testifying  for 
or  against  each  other.  Hearsay  evidence  is  not  ex- 
cluded. But  everything  is  admissible  that  the  coun- 
cil choose  to  admit,  that  will  help  them  come  to 
an  understanding  of  the  case.  The  Supreme  Court 
has  never  qualified  this  license  of  proof,  or  been 
called  to  qualify  it.  The  peculiar  questions  submitted 
to  a  council;  the  object  of  the  examination,  which 
is  not  always  to  vindicate  any  one's  character,  or 
convict  any  one  of  wrong  doing ;  the  want  of  power 
in  the  council  to  compel  the  attendance  or  testimony 
of  witnesses ;  and  all  other  considerations  point  to 
the  necessity  of  admitting  the  largest  liberty  in  the 
quantity  and  quality  of  the  evidence  introduced.^ 

The  occasional  complexity  and  boundlessness  of 
ecclesiastical  council  questions  is  well  indicated  in 
the  ancient  Ipswich  case,  and  suggests  a  like  mar- 
gin as  to  the  proof.  The  council  "  having  informed 
themselves  of  all  proceedings  and  transactions  (says 
the  letter  missive  of  the  General  Court)  of  the 
churches  of  Ipswich  and  Boston,  in  reference  to  Mr. 
Norton's  settling  in  Boston,  in  way  of  office,  or  so 
much  as  may  beget  a  right  understanding  of  the 
whole  case  or  cause  of  obstruction,  they  may,  if  they 

1  The  witnesses  in  Mr.  Pierpont's  case,  1840,  114,  were  sworn. 


228  MASSACHUSETTS  ECCLESIASTICAL   LAW. 

please,  first  endeavor,  by  arguments  and  Christian 
advice,  to  persuade  each  church  and  party  to  do 
their  duty ;  or  otherwise  (according  to  the  order  and 
power  of  a  council  to  declare  the  mind  of  Christ), 
what  is  further  to  be  done  by  the  churches  of  Ips- 
wich and  Boston  (or  Mr.  Norton),  in  reference  to 
his  settling  at  Boston,  or  returning  to  his  charge  at 
Ipswich."  These  are  still  the  bounds,  if  bounds 
they  may  be  called,  recognized  by  the  courts  in  ex- 
amining these  peculiar  cases ;  founded  on  the  im- 
perishable right  of  everybody  in  Massachusetts  to 
liberate  his  soul  in  questions  spiritual.  The  exer- 
cise of  it  brought  a  lasting  peace  in  the  Ipswich 
case,  and  will  do  so  hereafter,  until  the  Massachu- 
setts man  changes  the  ecclesiastical  ingredients  of 
his  nature.^ 

1  As  early  as  April,  4, 1819,  Old  South  voted  to  attend  no  councils  of 
Unitarian  ministers.  The  General  Association,  1823,  recommend  min- 
isters "  not  to  attend  ex  parte  councils,  without  much  deliberation  and 
obvious  and  urgent  necessity." 

For  suggestions  that  the  letter  missive  contain  the  specific  questions 
that  are  to  come  before  the  council,  and  that  the  names  of  all  churches 
joining  in  the  council  be  stated  in  the  letter,  see  6  Christian  Review, 
246.  The  difficulty  of  making  a  simple  issue,  and  confining  a  council 
to  it,  is  illustrated  in  Mr.  Pierpont's  case. 

Judging  from  the  case  of  Dr.  M'Pheters,  contained  in  the  Presby- 
terian of  June  25,  1864,  multifarious  issues  are  not  unknown  in  the 
Presbyterian  courts. 


CHAPTER    XVIII. 

Councils  continued  —  The  Result  —  Modes  of  receiTing  —  President  Edwards  — 
Results,  when  binding  —  Stearns  v.  Bedford  —  Hollis  Street  —  Result  accepted 
by  one  Party. 

§  1.  The  conclusion  to  which  a  council  comes,  by- 
means  of  testimony  or  without  testimony,  upon  the 
questions  before  them,  multifarious  or  single,  is  called 
their  result,  which  may  be  simple  or  compound, 
direct  or  qualified,  as  the  case  in  hand  requires.  In 
discrimination,  sound  sense,  and  Christian  modera- 
tion, these  results,  gathered  from  periodicals  and 
pamphlets,  compare  favorably  with  acts  of  church 
dignitaries,  ancient  and  modern.  And  they.seem  to 
follow,  by  Christian  instinct,  the  best  precedents  of 
the  high  ecclesiastical  tribunals. 

Since  the  repeal  of  the  statute  de  hceretico  combiir 
rendo,  which  dates  from  1677  in  England,  the  usage 
of  the  more  important  supervisory  bodies  has  been 
to  condemn,  in  their  results,  first,  the  error ;  next,  the 
accused,  "  provided  he  holds  the  error."  This  was  the 
course  adopted  in  1699,  by  the  Pope,  in  the  great 
case  of  Bossuet  v.  Fenelon,  when  the  errors  of  the 
Perfectionists  and  Quietists  were  condemned,  in 
thirty-seven  articles ;  and  Fenelon  was  then  con- 
demned, provided  these  errors  were  contained  in  his 
works.  So,  in  Wilson  v.  Beecher,  and  Junkin  v. 
Barnes,  in  their  trials  before  the  courts  of  the  Pres- 

(20)  (229) 


230  MASSACHUSETTS    ECCLESIASTICAL   LAW. 

byterian  Church,  in  1836.  So,  also,  in  Atwater  v, 
Bushnell,  in  the  General  Association  of  the  State  of 
Connecticut,  in  the  year  1853.^  The  simple  ecclesi- 
astical councils  of  Massachusetts,  guided  by  in- 
stinct or  precedent,  pursue  nearly  the  same  course. 
In  1863,  in  a  council  at  Georgetown,  they  first  con- 
demn the  statements  that  the  soul  of  man  aposta- 
tized in  a  preexistent  state  ;  that  offers  of  salvation 
are  made  after  this  life  ;  that  Christ's  sufferings  are 
suasory  and  argumentative,  rather  than  vicarious ; 
and  the  minister  is  next  condemned,  "  provided  these 
errors  are  contained  in  his  sermons."  ^ 

The  result  of  an  ecclesiastical  council,  whatever 
may  be  the  matter  before  them,  should  be  expressed 
in  writing,  clearly  and  distinctly,  and  in  an  orderly 
way.  To  this  result  a  right-minded  man,  minister 
or  layman,  is  inclined  to  defer,  if  reached  impartially, 
And  it  *is  a  proof  of  the  prevalence  of  Christian 
sense  and  temper,  that  so  many  results  are  deferred 
to  without  hesitation  or  appeal  to  public  opinion. 
President  Edwards  found  little  impartiality  in  the 
mutual  council  that  dismissed  him  from  Northamp- 
ton by  a  majority  of  one,  many  of  whose  members 
had  prejudged  his  case,  and  most  of  them  were  his 
theological  opponents  (all  belonged  to  his  own 
ministerial  association)  ;  yet  he  respected  their  deci- 

1  Repertory,  1853,  189;  do.,  1853,  598. 

2  See  Boston  Recorder,  July  4,  1863.  Also  Congregationalist,  Trav- 
eller, and  75  Examiner,  387,  for  strictures  on  the  result. 

The  errors  of  Rev.  Theodore  Parker  are  discussed,  36  Examiner, 
408  ;  and  the  inability  of  the  Unitarian  churches  to  deal  with  tliem,  ig 
maintained,  54  Examiner,  313. 


MASSACHUSETTS   ECCLESIASTICAL   LAW.  231 

sion,  and  went  into  the  wilderness  with  a  small  sal- 
ary, a  large  family,  and  no  hope  of  an  advantageous 
settlement.^ 

§  2.  A  chapter  would  hardly  describe  the  various 
moods  in  which  results  of  councils  were  formerly 
received.  Mrs.  Doane  says  of  her  opponents  at 
Eastham,  in  1720,  "  Thus  it  may  be  seen  how  they 
have  dealt  with  me  ;  and,  when  they  could  not  pre- 
v^ent  a  council  taking  notice  of  the  matter,  even 
trample  on  the  council."  In  the  case  of  the  New 
North,  1720,  the  general  strain  of  vindication  adopted 
by  "  the  aggrieved "  is  so  happily  expressed,  that 
it  may  serve  as  a  formula :  "  This  declaration 
is  drawn  up  to  manifest  our  innocency  of  and 
freeness  from  guilt  against  the  hard,  wrong,  and  un- 
just thoughts  that  many  (we  are  apt  to  think)  har- 
bor and  indulge  against  us." 

That  in  some  instances  Christian  sense  and  tem- 
per have  not  been  displayed  until  the  end  of  a  second 
or  third  council,  does  not  impair  the  commendation 
justly  due  to  councils ;  nor  that  parties,  at  a  loss 
how  to  act,  have  occasionally  consulted  public  opin- 
ion, or  appealed  to  the  Supreme  Judicial  Court.^ 

1  Athenaeum  pamplets,  B.  24 ;  Pamphlets  of  Messrs.  Hobby  and 
Breck,  Hist.  Soc.  Under  the  rule  of  the  Hampshire  Association, 
adopted  in  1714,  the  council  must  consist  of  members  of  the  associa- 
tion. There  was  danger  of  arrest  if  a  member  attended  out  of  the 
bounds  of  his  association. 

'■^  The  Ipswich  council,  1 805,  resent  the  publication  of  an  anonymous, 
partial  review  of  their  results,  made  by  one  of  the  parties.  In  the 
Eastham  case,  it  was  advised  that  no  pamphlets  be  printed.  Aliter  in 
Ml".  Piex-pont's  case. 

That  canons,  however  formal,  will  not  secure  respect  to  the  results 
of  councils,  or  prevent  appeals  to  the  public,  see  the  cases  of  bishops 
\ 


232  MASSACHUSETTS   ECCLESIASTICAL   LAW. 

It  was  a  fine  tribute  to  this  sure  acting  of  com- 
mon sense  and  Christian  reason,  in  the  long  run, 
which  the  First  Church  in  Boston  paid,  when  they 
went  to  the  church  in  Ipswich,  expostulating  their 
vote,  after  a  mutual  council  had  dismissed  Mr.  Nor- 
ton ;  met  them  again,  in  mutual  council  at  Boston ; 
and  finally,  in  company  with  the  governor,  at  least 
twenty-four  men,  on  horseback,  went  from  Boston 
to  Ipswich,  and  there,  in  mutual  council,  enlightened 
the  church  of  Ipswich,  so  that  they  gave  up  their 
beloved  pastor,  after  a  three  years'  contest.^  The 
General  Court  would  not  sanction  Mr.  Norton's 
coming  to  Boston,  much  as  he  was  needed  to  fill 
Mr.  Cotton's  place  in  church  and  state, — much  as 
he  wanted  to  come  himself.^  A  fainter  reliance  on 
the  sure  actings  of  common  Christian  sense  might 
have  dispensed  with  the  expostulation  and  all  the 
councils,  and  left  us  a  precedent  in  1656,  in  full 
bloom,  of  English  or  Scotch  arbitrary  ecclesiastical 
law,  in  the  Ipswich  case,  with  aU  the  machinery  of 

heretofore  cited.    For  instances  of  other  clergy  of  the  Episcopal  denomi- 
nation, see  The  Church  Review ;  Delancy  v.  Davenport,  viii.  468  ;  Doane 

V. ,  xi.  523;    Walker's  case,  vi.  639;    Carey's  case;    Prescott's 

case. 

1  Mr.  Norton  died  April  5,  1663.  To  his  latest  day,  he  abated  none 
of  his  reverence  for  ecclesiastical  councils.  The  Cambridge  Platform 
has  its  great  weight  in  his  estimation  as  the  result  of  a  council.  In  his 
sermon,  delivered  three  days  before  his  death,  at  the  Thursday  Lecture, 
he  says,  "  Remember  that  we  have  this  pattern  in  tlie  Mount.  I  mean, 
we  have  the  Scriptures  as  a  rule ;  and  you  have  the  phitform  of  church 
discipline,  given  to  you  in  way  of  council,  as  the  confession  of  our 
faith  to  this  way  of  church  government.  You  know  in  wliat  manner  it 
was,  that  which  (for  the  substance  of  it)  owns  tlie  cause  congregational. 
If  any  are  departed  from  it,  let  them  look  to  it."  Appendix  to  John 
Wise,  edition  1772,  229. 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  233 

mandamus,  citation,  and  excommunication  for  con- 
tempt of  judgment.^ 

§  3.  It  would  take  long  to  describe  the  influences 
that  withheld  the  General  Court,  in  church  matters, 
from  its  masculine,  rigorous  dealing  on  ordinary- 
occasions  ;  in  a  word,  it  may  be  said,  they  came  into 
the  wilderness  on  a  Christian  errand,  to  found  a 
free  church.^  This  anomalous,  feminine  delicacy 
and  consideration  in  the  treatment  of  the  Ipswich 
church  characterized  the  treatment  of  churches  gen- 
erally in  the  matter  of  ecclesiastical  councils,  and 
to  this  day  affects  the  decisions  of  our  Supreme  Ju- 
dicial Court  in  matters  ecclesiastical.^ 

In  the  reported  cases,  a  steady  eye  is  kept  on  the 
maxim  laid  down  in  Cotton's  Book  of  the  Keys,  the 
Cambridge  Platform  and  Savoy  Conference,  that 
each  particular  church  is,  in  a  measure,  independent 
as  weU  as  congregational ;  also,  that  the  result  of  a 
council,  mutual  or  ex  parte^  however  prayerfully  or 
carefully  reached,  has  no  more  force  than  the  parties 

1  The  ante-Revolutionary  pamphlets  furnish  specimens  of  all  the 
possible  results.  For  one  unsatisfactory  to  all  parties,  especially  to  the 
minister  whose  doctrines  were  examined,  see  the  Newbury  Council, 
1767.  A  prime  remedy  then  was  to  form  a  new  parish  as  soon  as  the 
General  Court  would  allow.  The  difficulty  at  Eastham  was  aggravated 
by  the  women  having  to  go  twenty  miles  to  meeting. 

2  For  Judge  Washburn's  argument,  that,  in  the  Puritan's  estimation, 
the  free  church,  free  gospel,  and  free  government  went  abreast,  see  Con- 
gregational Quarterly,  July,  1860. 

^  Subordinate  reasons  had  their  weight  with  the  learned  Court  in  some 
cases,  thus  :  The  Rev.  John  Barnard,  in  1727,  says  tlie  Court  at  Salem, 
partly  to  save  themselves  trouble,  partly  in  deference  to  the  church,  refused 
to  take  up  a  case  on  his  suggesting  that  it  was  in  the  hands  of  a  coun- 
cil. Mass.  Hist.  Soc,  vol.  v.  series  iii.  page  228. 
20  * 


234  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

themselves  choose  to  give  to  it ;  resembling,  ethically 
and  legally,  in  Massachusetts,  good  advice,  admin- 
istered under  the  sanction  of  the  law ;  which  both 
parties  may  reject  without  incurring  civil  penalties. 
Should  a  party  accept  the  result,  the  law  has  phrases 
of  commendation  to  bestow  ;  judicial  rebukes  are 
occasionally  given  to  him  who  declines  to  accept ; 
but  little  substantial  has  the  court  now-a-days  to 
offer  the  solitary  acceptor  of  the  result  of  a  council. 
The  time  has  gone  by  when  Lechford  enquired, 
"  Were  not  the  counselled  bound  to  receive  good 
council  ?  If  they  would  not  receive  it,  was  not  the 
magistrate  ready  to  assist,  and,  in  a  manner  according 
to  duty,  to  enforce  peace  and  obedience  ?  Did  not 
the  magistrate  assist ;  and  was  not  Master  K.  com- 
pounded with  to  seek  a  new  place  at  Long  Island ; 
Master  Doughty  forced  to  the  island  Aquednock, 
and  Master  Blindman  to  Connecticut?"  ^ 

It  is  not  to  be  denied  that  councils,  thus  uncertain 
in  their  course  and  results,  are  often  a  sore  puzzle 
and  vexation  to  gentlemen  coming  from  a  distance 
to  give  their  patient  attention  and  candid  advice. 
Accustomed  to  the  prompt,  effectual  judgments 
of  common-law  courts,  where  execution  (the  fruit 
of  a  judgment)  follows  the  judgment  at  no  great 
interval,  all  these  advisory  solemnities  seem  trifling. 
But  open  as  they  are  to  secular  criticism,  they 
have  had  the   sanction  of  the  courts,  as  well  as  the 

1  Lechford,  107.  Some  expressions  in  the  Cambridfre  and  Saybrook 
platfornns  countenance  these  remarks  of  Lechford.  Both  phuforms  sug- 
gest that  churches  and  individuals,  who  do  not  give  a  prompt  and  cor- 
dial assent  to  such  results,  are  very  censurable. 


MASSACHUSETTS  ECCLESIASTICAL    LAW.  235 

churches,  for  two  hundred  years ;  and  there  seems 
little  disposition  to  modify  them  :  indeed,  in  one  of 
the  latest  and  best  considered  expositions  of  the  law 
and  practice  of  councils,  any  attempt  to  alter  the 
established  law  of  Congregational  churches,  by  the 
parties  agreeing  beforehand  to  abide  by  the  result, 
whatever  it  may  be,  is  sharply  rebuked.  The  rev- 
erend and  lay  members  of  the  Council  of  Reading, 
in  1847,  insist  that  the  Congregational  church  is, 
and  always  must  be,  so  spiritual  a  body  that  it  can- 
not allow  any  such  expedient  from  the  common  law 
to  be  foisted  into  it,  directly  or  indirectly  ;  that  the 
Latin  maxim,  "  ut  finis  sit  litium^^^  is  not  so  good 
as  the  Scriptural  maxim,  that  the  members  of  a 
church  should  be  "  fully  persuaded  in  their  own 
minds." 

§  4.  The  leanings  of  the  Supreme  Judicial  Court, 
in  the  matter  of  accepting  a  result,  are  illustrated  by 
the  case  of  Stearns  v.  Bedford,^  which  was  decided 
in  1838.  Ml-.  Stearns  was  settled  in  Bedford,  1796, 
on  a  salary  of  three  hundred  and  thirty-three  dollars 
and  twenty  cords  of  firewood  per  annum.  The 
parish  loaned  him,  in  1801,  one  thousand  dollars  on 
his  bond,  with  a  surety.  Ten  years  after  this,  his 
salary  was  again  raised  to  five  hundred  dollars ;  the 
cords  of  wood  per  annum  remaining  the  same.  In 
1832,  a  mutual  council  was  called  to  "judge,  deter- 
mine, and  decide,"  whether  it  was  "  expedient,  proper, 
and  just,  that  his  relations  with  the  society  be  dis- 
solved."    The  council  exonerating  Mr.  Stearns  fi:om 

1  21  Pick.  214. 


236  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

all  blame  decided,  that  it  was  "  expedient  to  dissolve 
it  on  suitable  pecuniary  considerations,"  doctrinal 
differences  having  sprung  up.  The  pecuniary  consid- 
erations were  cancelling  the  bond  to  the  parish,  and 
paying  the  minister  six  months'  salary.  This  result 
reached  on  the  21st  February,  Mr.  Stearns  accepted 
March  10th  ;  a  committee  of  the  parish,  on  the  22d  of 
April,  recommend  the  parish  to  accept  the  result.  The 
parish  accepted  the  report  of  their  committee,  so  far 
as  to  order  a  committee  (larger  than  the  first)  to  ac- 
cept the  result,  "  when  they  have  adequate  funds, 
and  shall  deem  it  for  the  interest  of  the  parish  to  do 
it,  and  in  the  mean  time  to  provide  Unitarian  preach- 
ing." Mr.  Stearns,  not  receiving  his  bond  or  his 
salary,  sued  the  parish  for  his  salary,  on  the  ground, 
that  the  parish  as  well  as  himself  had  accepted  the 
result  of  the  mutual  council.  The  Court  say,  that,  if 
the  mutual  council  had  been  referees  or  arbitrators, 
the  case  would  be  a  plain  one ;  but  both  parties, 
having  submitted  themselves  to  a  mutual  council, 
must  take  such  judgment  as  a  mutual  council  can 
give  ;  which  is  no  judgment  binding  at  all  on  either 
party,  until  both  had  accepted  the  result ;  and,  until 
such  acceptance,  the  Supreme  Court  could  not  en- 
force it:  they  had  not  equity  or  common-law  pow- 
ers sufficient  for  the  purpose.^ 

That  the  parish  had  not  accepted  the  result  was 
plain,  say  the  Court.     On  the  22d  of  April,  they  had 

^  That  the  Court's  equity  powers  are  limited  in  the  case  of  an  appli- 
cation by  the  minister  (and  a  minority  of  the  church  who  are  not  pew- 
holders),  so  as  to  be  unable  to  compel  the  society  to  allow  him  to 
preach,  see  Clark  v.  Evangelical  Society,  Quincy,  185S,  Gray, 


MASSACHUSETTS    ECCLESIASTICAL    LAW,  237 

referred  it  to  a  committee  "  to  see  about  it ;  on  the 
27th,  Mr.  Stearns  had  brought  his  suit.  Five  days 
was  not  a  long  time  for  a  country  corporation  to  con- 
sider or  "  see  about  "  a  matter.  By  not  cancelling 
the  bond  or  paying  the  salary,  they  showed,  beyond 
peradventure,  that  they  had  not  accepted  the  result. 
A  sharp  legal  rebuke  is  administered  to  the  unhand- 
some parish  of  Bedford  by  Mr.  Justice  Morton.  On 
the  next  page,  however,  in  a  new  suit,  the  treasurer 
of  the  parish,  unabashed,  recovers  judgment  on  the 
bond  for  one  thousand  dollars,  against  Mr.  Stearns' 
surety.  The  aged  minister,  escaping  courts  and 
councils,  parishes  and  treasurers,  had  died  mean- 
while. This  sad  ending  of  forty  years'  service  of  a 
Congregational  parish  conveys  little  comfort  to  min- 
isters, old  or  young. 

Melancholy  and  rough  as  the  decision  is,  it 
expresses  with  legal  precision  the  truth  so  dear  to 
the  Congregational  heart,  that  there  is  no  power  on 
earth,  or  under  the  earth  (in  Heaven  alone  it  is 
lodged),  to  compel  a  minister,  a  church,  an  individ- 
ual, qr  a  religious  society,  to  accept  the  result  of  an 
ecclesiastical  council.  Mr.  Stearns  had  the  sym- 
pathy of  the  Supreme  Judicial  Court,  but  he  must 
wait  till  light  broke  in  upon  the  inhabitants  of 
Bedford:  just  as,  in  the  days  of  the  Fathers,  the 
Great  and  General  Court  had  to  wait,  and  the  First 
Church  in  Boston  had  to  wait,  and  Mr.  Norton  had 
to  wait,  until  Heaven  itself  should  '•  proceed  to  move 
the  church  in  Ipswich  to  proceed  to  grant  the  request 
of  the  First  Church  in  Boston." 

§  5.  Attempts,  early  and  late,  to  alter  the  Congre- 


238  MASSACHUSETTS    ECCLESIASTICAL  LAW. 

gational  polity  in  these  respects  have  failed.  The 
Presbyterian  elements  introduced  in  the  Cambridge 
platform  of  1648,  "  after  great  contentions  between 
the  godly,  reverend,  and  learned  brethren  of  the 
Presbyterian  judgment;  and  the  dissenting,  godly, 
reverend,  and  learned  brethren  commonly  called 
Independent," — these  scattered  elements  are  nearly 
eliminated  in  our  day.^ 

The  attempts  made  by  the  Synod  of  1662,  and 
again  by  the  Boston  Association  of  Ministers  in 
1705,  to  give  ministerial  associations  ecclesiastical 
power  as  standing  councils,  were  strenuously  resisted.^ 
The  want  of  some  tribunal  to  try  large  clerical 
offenders  was  lamented  with  great  sincerity,  and  an 
attempt  made  in  1815  to  give  to  the  conferences 
of  churches  certain  consociational  powers,  after  the 
manner  of  the  Saybrook  platform.  Again,  through 
the  Massachusetts  General  Association  of  Ministers 
in  1845,  an  effort  was  made  in  the  same  direction, 
but  with  no  better  success.^ 

Various  trials,  in  neighboring  States,  of  ministers 

1  1  Felt,  Eccles.  Hist.  545.  For  the  English  discussions  between 
Presbyterians  and  Independents,  see  Hanbury,  3  vols.  That  John  Rob- 
inson's views  of  polity  were  mingled,  partly  Congregational,  partly  Pres- 
bytei'ian,  see  Repertory,  1857, 188. 

'■^  See  Churches  Quarrel  Espoused,  by  John  Wise. 

3  Panoplist,  1812,  1815;  Dr.  Emmons,  Dr.  Samuel  Spring,  Dr. 
Elijah  Parish;  Dr.  Samuel  Worcester's  Life,  vol.  ii.,  297-300;  Hon. 
John  Lowell's  Reply,  1816;  Dr.  Aaron  Bancroft's  Sermon,  June  23, 
1816,  2d  ed. ;  Reading  Council,  1847;  Howard  Street  (Salem)  Coun- 
cil, 1849,  2d  ed.  A  question  might  be  raised,  whether  the  Unitarian 
controversy  had  not  rendered  the  orthodox  churches  more  steadfast  in 
polity  as  well  as  doctrine.  Can  all  the  wholesome  results  in  this  direc- 
tion be  ascribed  to  the  excision  of  1837  ? 


MASSACHUSETTS   ECCLESIASTICAL  LAW.  239 

and  of  churches,  before  large  tribunals,  have  rather 
served  to  attach  the  Massachusetts  Congregationalist 
to  his  homely,  local,  ecclesiastical  councils,  called  in 
for  the  occasion,  composed  of  neighboring  ministers 
and  laymen,  for  the  trial  of  all  cases,  great  and  small.^ 
If  we  listen  to  complaints  in  regard  to  the  want  of 
discipline  and  the  infirmity  of  church  courts  in  other 
denominations,  we  cannot  take  seriously  to  heart  the 
strictures  upon  Massachusetts  councils  ;  especially  if 
we  find  that  as  many  fundamental  points  of  doctrine 
and  polity  are  settled  in  Massachusetts  as  else- 
wnere.2 

§  6.  Looking  over  the  whole  subject,  we  may  say 
that  ecclesiastical  councils  have  well  done  the 
important  work  of  testifying  the  Christian  sympathy 
that  churches,  ministers,  and  members  have  for  each 
other ;  that  in  matters  of  difficulty,  doctrinal  and 
practical,  they  have  sorted  well  with  the  eminently 


1  Trial  of  Rev.  Lyman  Beecher,  D.D. ;  Rev.  Albert  Barnes;  Rev. 
Horace  Bushnell,  D.D.  Trial  of  Rt.  Rev.  Benjamin  T.  Onderdonk. 
Trial  of  Rev.  Hooper  Cummings,  1817  ;  City  Library.  Trial  of  Rt. 
Rev.  George  W.  Doane.  Dexter's  Congregationalism,  288.  Dutch 
Church  of  Albany  v.  Bradford,  8  Co  wen,  459,  1826. 

2  The  English  establishment  despairs  of  curing  defects  in  discipline 
by  statute  law.  Law  Mag.  and  Rev.  viii.  28.  For  many  years,  Amer- 
ican Presbyterians  have  bemoaned  their  system  of  trials  before  the  Gen- 
eral Assembly,  and  their  multifarious  business.  Repertory,  1835, 179  ; 
1840,  454  ;  1857,  497  ;  1861,  590.  That  the  Connecticut  consociational 
plan  falls  to  pieces  when  put  to  work,  see  Repertory,  1853,  598. 
Episcopalians,  each  time  approximating  a  Massachusetts  council,  have 
often  amended  their  rules,  for  the  trial  of  bishops  and  other  clergy,  by 
separate  tribunals,  and  are  not  yet  content.  The  Methodists  have 
promising  lists  of  disciplinary  questions  officially  decided  by  each 
bishop.     See  Porter's  Compendium,  406. 


240  MASSACHUSETTS    ECCLESIASTICAL    LAW. 

free  spirit  of  the  people,  aiming  at  the  truth  without 
claiming  absolute  deference  for  their  results,  —  with- 
out putting  restraints  upon  the  freest  appeal  to  ordi- 
nary courts  of  justice. 

It  is  no  slight  merit,  we  may  further  add,  that 
these  domestic  tribunals  have  been  well  understood 
by  courts  of  justice  who  have  not,  on  appeal,  dis- 
paraged their  results  because  they  were  reached  by 
no  precise  rules  of  the  common  law  ;  but  have  al- 
ways treated  them  with  deference ;  carrying  the 
deference  so  far  that  a  legal  maxim  has  been  cir- 
culated, subject  to  qualifications,  to  the  effect  that 
the  result  of  an  ecclesiastical  council  in  Massachu- 
setts avails  a  party,  by  way  of  protection,  in  a  court 
of  justice,  in  case  he  accepts  the  result,  and  the  other 
party  declines  to  accept. 

Let  us  examine  the  maxim  and  its  qualifications. 
There  have  been  six  or  eight  cases  treating  of  eccle- 
siastical councils  in  the  Supreme  Judicial  Court ;  all 
of  them  appeals  in  regard  to  the  dismission  of  minis- 
ters. In  Avery  v.  Tyringham,^  where  the  maxim  is 
broached,  by  Chief  Justice  Parsons,  that  the  party 
accepting  the  result  is  protected  if  the  other  re- 
fuse to  accept,  there  was  no  occasion  for  it ;  for 
Mr.  Avery  was  improperly  dismissed,  by  vote  of 
the  town,  without  a  council.  It  is  therefore  an  obiter 
dictum^  thrown  out  by  that  eminent  judge  in  the 
course  of  a  statement  of  his  views  in  regard  to  the 
nature  and  dignity  of  councils.  Burr  v.  Sandwich, 
in  1812,  was  the  next  case  in  which  Chief  Justice 

1  3  Mass.  160. 


MASSACHUSETTS    ECCLESIASTICAL    LAW.  241 

Parsons  laid  down  the  maxim.  An  ex  parte  council 
had  advised  Mr.  Burr  to  leave,  on  account  of  irrecon- 
cilable differences  in  theology;  he  having  become 
more  and  more  Calvinistic,  while  his  parish  remained 
Arminian.  Here  the  parish  accepted  the  result  of 
the  council :   Mr.  Burr  and  the  church  did  not.^ 

In  1813,  Chief  Justice  Parsons  died,  having,  in 
these  two  cases,  marked  out  the  main  features  of  the 
ecclesiastical  law  of  Massachusetts.  In  his  endeavor 
to  anticipate  all  questions  that  might  arise,  he  was 
incHned  to  make  a  council  more  of  a  court,  or  board 
of  referees,  than  the  later  Puritan  fathers  were.  It 
is  true,  that,  by  going  far  back  for  a  precedent, 
Chief  Justice  Parsons  might  consider  this  one  of 
the  occasions  described  in  Hubbard's  History,  where 
the  civil  magistrate  might  put  an  end  to  controver- 
sies, thereby  promoting  uniformity  ;  to  wit :  where 
neighboring  ministers  "  could  not  heal  breaches  ;  or 
the  apprehensions  of  messengers  were  differing;  or 
the  offending  parties  were  contumacious."  ^ 

Chief  Justice  Parker,  colleague  and  successor 
of  Chief  Justice  Parsons,  held  office  till  1830 :  his 
first  ecclesiastical  case  was  Cochran  v,  Camden. 
There  was  no  occasion  to  express  an  opinion  on  the 
point  (for  the  minister  was  dismissed  without  having 
the  offer  of  a  council)  ;  and  the  chief  justice  was 
not  so  constructive  a  genius  in  the  law  as  his  prede- 
cessor. In  the  two  Rehoboth  cases,  in  1828,  the 
minister  was  abundantly  dismissed,  by  several  coun- 

1  Burr  V.  Sandwich,  Mass.  9,  277.  For  Mr.  Burr's  Theology,  see 
Cong.  Quar.,  April,  1865,  196. 

2  Hubbard,  608. 

21 


242  MASSACHUSETTS  ECCLESIASTICAL  LAW. 

cils,  and  the  society  accepted  the  result.  Putting 
themselves  under  the  protection  of  the  maxim,  they 
refused  to  pay  the  salary ;  but  the  Court  claimed 
the  privilege  of  looking  into  all  the  proceedings,  from 
first  to  last,  —  the  construction  of  the  council,  its  acts, 
and  result ;  on  both  occasions  denying  the  maxim 
any  practical  force. 

Without  attempting  to  give  all  the  limits  of  the 
discussion,  in  one  direction  it  has  been  decided 
that  a  council,  in  1832,  though  regular  and  impartial 
in  its  beginning,  middle,  and  end,  cannot  effectually 
dismiss  a  minister  for  refusing  to  make  exchanges 
with  other  ministers,  for  neglecting  to  reply  to  com- 
munications from  committees  of  the  parish,  however 
willing  his  people  may  be  to  have  him  dismissed  on 
these  grounds,  —  however  cheerfully  they  accept  the 
result,  —  if  the  minister  do  not  accept  it  as  well.^ 
Another  qualification  is  the  case  of  Stearns  v.  Bed- 
ford. How  little  aid,  in  that  case,  the  result  of  a 
council  was  to  the  minister,  we  already  know. 

But  Mr.  Pierpont,  who  has  profited  beyond  most 
in  the  law-ecclesiastical,  what  substantial  protec- 
tion has  he  derived  from  the  maxim,  which  was 
repeated  in  1844,  in  his  behalf,  by  Mr.  Justice  Wilde, 
after  a  silence  of  many  years  ?  ^  Mr.  Pierpont,  after 
contending  with  the  Hollis  Street  society  five  years, 
accepted  the  result  of  a  council,  which  the  society 
refused  to  accept.  An  equivalent  for  his  salary, 
which  should  have  been  paid  by  the  society,  was 


1  Sheldon  v.  Easton,  24  Pick.  281.     Sec  ch.  7,  §  9. 

2  Proprietors  v.  Pierpont,  7  Met.  495. 


MASSACHUSETTS   ECCLESIASTICAL   LAW.         243 

paid  to  him  out  of  a  trust  fund  belonging  to  the 
church,  through  the  aid  of  a  friendly  deacon,  having 
charge  of  the  fund.  In  two  of  the  suits,  brought 
by  the  parish,  against  Mr.  Pierpont  and  the  deacon, 
the  Court  virtually  say,  that  Mr.  Pierpont  remained 
the  pastor  of  the  Hollis  Street  church ;  that  he  did 
not  do  amiss  in  accepting  the  money  from  the  church, 
and  the  deacon  did  not  do  amiss  in  paying  it,  al- 
though the  sum  was  due  to  Mr.  Pierpont  from  the 
religious  society.  In  the  third  suit,  which  grew  out 
of  this  council  and  its  result,  the  Court  grant  Mr. 
Pierpont  a  respite  from  new  suits,  having  for  their 
object  to  inquire  whether  he  really  wrote  a  prologue 
for  the  theatre.  Mr.  Pierpont  might  well  have  been 
excused  from  answering  such  questions  on  grounds 
having  no  connection  with  councils,  churches,  or 
courts ;  but  the  Court  say  these  questions  have  al- 
ready been  examined  by  an  ecclesiastical  council,  a 
competent  and  highly  respectable  tribunal,  whose  de- 
cision, in  that  instance,  is  final.  Mr.  Pierpont,  there- 
fore, by  accepting  the  result  of  a  council,  which  re- 
fused to  dismiss  him,  finds  himself  and  the  Hollis 
Street  society,  after  a  five  years'  contest,  put  by  the 
Court  into  a  position  of  armed  neutrality  towards  a 
religious  society,  —  an  expensive  and  dangerous 
position  for  nations,  however  it  may  be  for  ministers. 
And  this  is  all  that  a  court  of  justice  can  do  towards 
protecting  (under  favorable  circumstances)  a  minister 
who  accepts  the  result  of  a  council,  which  is  rejected 
by  the  other  party. 

§  7.  Thus  far,  we  have  spoken  of  the  protection 
given  to  a  party  who  accepts  the  result  of  a  councU. 


244  MASSACHUSETTS   ECCLESIASTICAL   LAW. 

To  third  persons,  however,  whose  duty  it  is  to  act 
under  such  result,  directly  or  indirectly,  the  Court 
extends  a  more  adequate  protection  ;  such,  for  exam- 
ple, as  Dr.  Adams  received,  when  sued  by  a  member 
of  the  SujfFolk  South  Association  of  Ministers.^ 

But  parties  themselves,  appealing  to  the  Supreme 
Court  from  the  result  of  an  ecclesiastical  council, 
will  bear  in  mind  ever  the  explicit  rules  laid  down 
in  Stearns  v.  Bedford.  They  will  not  be  misled  by 
an  instance  or  two  of  apparent  success.  The  rules 
are  these :  The  Court  always  look  behind  the  adju- 
dication of  the  council.  To  have  any  validity  what- 
ever, it  must  appear  from  the  proceedings :  1st, 
That  the  cause  for  calling  the  council  was  sufficient ; 
2d,  That  the  members  were  properly  selected;  3d, 
That  they  proceeded  impartially,  and  with  due  re- 
gard to  the  rights  of  all  parties;  4th,  That  their 
result,  besides  being  formal  and  explicit,  is  based  on 
grounds  that  will  sustain  it ;  and  finally,  that  the  re- 
sult of  a  council  thus  proper  in  every  respect,  when 
laid  before  the  Court  is  only  prima  facie  evidence, 


1  In  Fairchild  v.  Adams,  a  very  respectable  board  of  referees  exoner- 
ated the  defendant,  who  adhered  to  the  original  unfavorable  decision  of 
the  association,  though  a  verdict  had  been  subsequently  obtained  in 
Court  exculpating  the  plaintiff  (Law  Reporter,  vol.  xiv.  278) ;  see  also 
1  Choate,  Writings  167,  for  a  statement  of  the  points  before  the 
referees.  This  award  of  the  referees  is  criticised  (14  Law  Reporter, 
395)  on  the  ground,  that  an  association  of  ministers  is  only  a  club, 
without  right  to  scrutinize  or  publish  its  members.  The  Supreme 
Court  upheld  the  award  (11  Cusli.  .549),  on  the  ground  that  the  minis- 
terial association  was  a  tribunal  to  which  Mr.  Fairchild,  a  member,  had 
submitted  his  case  originally,  and  for  i-cview,  and  the  defendant  had 
shown  no  malice. 


MASSACHUSETTS   ECCLESIASTICAL    LAW.  245 

and  derives  its  binding  force  mainly  from  the  consent 
of  parties. 

If  the  maxim  of  Chief  Justice  Parsons  has  not 
received  its  full  interpretation ;  if  it  has  not  yet 
made  all  the  vibrations  between  the  later  Puritan 
theory  and  the  high  ecclesiastical  theory,  of  which  it 
is  capable, — theologians  will  bear  in  mind  that  they 
are  busy  upon  axioms  connected  with  the  early 
life  of  Adam,  our  progenitor ;  among  lawyers,  it 
will  excite  no  surprise  that  judges  are  limiting  and 
expounding  the  maxims  of  1807,  in  regard  to  the 
delicate  subject  of  appeals  from  ecclesiastical  coun- 
cils to  civil  courts.^ 

As  we  draw  to  a  close,  we  will  not  exhaust  our 
stores  of  encomium  upon  the  courts  and  the  councils 
of  Massachusetts.  Whatever  estimate  others  may 
put  upon  our  ecclesiastical  councils,  which  are  the 
life  and  soul  of  Congregationalism,  their  advantages 
are  certainly  appreciated  by  the  people  at  home, 
who  have  seen  them,  in  times  of  peace  and  war, 
carrying  the  Congregational  churches  along,  in  rea- 
sonable purity  and  energy,  through  the  great  practical 
and  doctrinal  trials  of  the  past  two  hundred  years. 

It  is  pleasing,  moreover,  to  notice  that  these  coun- 
cils are  growing  in  public  favor.  When  the  Congre- 
gational churches  of  the  country  met  at  Boston,  in 
June,  1865,  there  was  no  caU  for  new  church  courts 
in  an  ascending  scale,  with  new  rights  of  appeal, 

1  In    the    Presbyterian    Church,   after    many    years  of   discussion, 
appeals  and  their  effects  are  still  a  mystery.     Dr.  McPheter's  Case, 
Presbyterian,  June  28,  1864.     So  in  the  English  Establishment,  Chris- 
tian Obsei-ver  for  May,  1865. 
21  * 


246  MASSACHUSETTS    ECCLESfASTICAL   LAW. 

complaint,  review,  reference,  reason,  remonstrance, 
and  protest;  but  the  churches  approved  and  con- 
firmed, by  their  elders  and  messengers,  the  simple 
advisory  gatherings  of  neighboring  ministers  and 
laymen,  which  the  Fathers  had  adopted,  without 
European  precedent.  They  fully  believed  that  so 
long  as  we  occupy  ourselves  in  propagating  the  gos- 
pel in  simplicity,  maintaining,  at  the  same  time, 
a  learned  and  godly  ministry  and  schools,  these 
ecclesiastical  councils  of  the  New  England  pattern 
will  be  found  competent  to  discharge  all  the  modest 
functions  of  church  courts.-^ 

^  See  Platform  of  Polity,  Cong.  Quar.,  July,  1865. 


APPENDIX 


APPEI^TDIX 


Statute  1786,  Chapter  10. 

§  1,  Be  it  enacted  hy  the  Senate  and  House  of  Representatives 
in  General  Court  assembled^  and  by  the  authority  ofthesame^  That 
the  bounds  and  limits  of  precincts  and  parishes,  as  they  have  been 
formerly  settled,  be,  and  hereby  are,  confirmed  and  established, 
until  they  shall  be  otherwise  ordered  by  the  General  Court.  And 
the  inhabitants  of  each  respective  parish  and  precinct,  who  shall  pay 
in  one  tax,  exclusive  of  the  poll  or  polls,  a  sum  equal  to  two-thirds 
of  a  single  poll  tax,  shall,  in  the  month  of  March  or  April  annu- 
ally, meet  and  assemble  together  at  such  time  and  place,  in  the 
same  parish  or  precinct,  as  they  shall  be  notified  to  attend  by  the 
collector  thereof,  or  such  other  person  as  the  assessors  thereof  shall 
appoint  to  notify  the  same;  and  the  said  inhabitants  shall  then 
and  there,  by  a  major  vote,  by  ballot,  or  such  other  method  as  they 
may  determine  convenient,  choose  a  town  clerk,  who  shall  be  un- 
der oath  truly  to  record  all  votes  passed  in  the  same,  or  any  other 
regular  meeting  of  the  corporation,  during  the  time  he  shall  re- 
main in  office ;  two  or  more  able  and  judicious  persons  for  assess- 
ors, a  treasurer,  collector  and  other  usual  parish  or  precinct 
officers.  And  no  person  in  commission  for  any  office,  civil  or  mili- 
tary, church  officer,  member  of  the  council,  senate,  or  house  of 
representatives,  for  the  time  being,  nor  any  one  who  has  served  in 
the  office  of  constable  or  collector  of  any  town,  district,  parish,  or 
precinct  within  the  term  of  seven  years,  shall  be  obliged  to  serve 
in  the  office  of  collector.  And  every  person  chosen  to  the  office 
of  collector,  and  not  exempted  as  aforesaid,  if  he  be  able  in  person 
to  execute  the  same,  and  of  the  same  denomination  of  Christians 

(249) 


250  APPENDIX. 

as  those  of  the  major  part  of  the  parish  or  precinct  who  shall 
choose  him,  who  shall  refuse  to  take  the  oath  to  that  office  pre- 
scribed, and  to  serve  therein,  shall  forfeit  and  pay  to  the  use  of 
the  same  precinct  or  parish,  the  sum  of  three  pounds.  And  the 
person  chosen  collector  shall,  if  present,  forthwith  declare  his  ac- 
ceptance or  refusal,  and  in  case  of  non-acceptance,  the  parish  or 
precinct  shall  proceed  to  a  new  choice,  and  so  from  time  to  time 
until  one  shall  accept  and  be  sworn ;  and  any  person  so  chosen, 
who  shall  be  present,  and  shall  not  declare  his  acceptance  of  the 
office  of  collector,  or  who  shall  neglect,  after  being  summoned  by 
a  constable  or  any  other  person  Avhom  the  clerk  or  assessors  may 
appoint  for  that  purpose  before  the  clerk,  to  take  the  oaths  of 
office  for  the  space  of  seven  days  next  after  being  notified  or 
summoned,  as  aforesaid  (which  oath  as  well  as  the  oath  of  all 
other  parish  or  precinct  officers  the  clerk  for  the  time  being  is 
hereby  authorized  and  empowered  to  administer)  and  shall  neg- 
lect to  pay  the  fine  aforesaid,  may  be  compelled  to  pay  the  same 
by  the  same  mode  of  process,  in  the  Court  of  General  Sessions  of 
the  Peace,  that  fines  may  by  law  be  recovered  of  persons  refusing 
to  serve  in  the  office  of  constable. 

§  2.  And  he  it  further  enacted  hy  the  authority  aforesaid^  That 
assessors  of  precincts  or  parishes  shall  be  empowered  to  manage 
their  prudentials  unless  a  committee  shall  specially  be  appointed 
for  that  purpose,  which  any  precinct  or  parish  is  empowered  to 
choose  if  they  think  proper ;  and  the  said  committee,  where  any  such 
shall  be  chosen,  and  the  assessors,  where  no  such  committee  shall 
be  appointed,  shall  have  like  power  and  authority  in  all  respects 
for  calling  parish  or  precinct  meetings  as  selectmen  by  law  have 
for  calling  town  meetings ;  and  in  case  of  a  vacancy  in  any  parish 
or  precinct  office  chosen  in  March  or  April,  the  same  vacancy 
may  be  filled  at  a  parish  or  precinct  meeting,  regularly  notified  at 
any  other  season  of  the  year.  And  the  moderator  of  a  parish  or 
precinct  meeting  shall  have  the  like  power  and  authority  in  gov- 
erning the  meeting  as  the  like  officer  by  law  has  in  a  town  meet- 
ing; and  persons  misbehaving  in  parish  or  precinct  meetings  shall 
be  subjected  to  similar  punishments  to  the  use  of  the  parish  or 
precinct,  as  pei'sons  misbehaving  in  town  meetings ;  and  the  penal- 
ties to  be  recovered  in  the  same  manner.     And  the  moderator,  in 


APPENDIX.  251 

case  no  justice  of  the  peace  is  present,  may  also  administer,  in 
open  meeting,  the  oath  of  office  to  the  clerk  thereof  And  when 
ten  or  more  of  the  qualified  voters  of  any  precinct  or  parish  shall 
signify,  in  writing,  their  desire  to  have  any  matter  or  thing  in- 
serted in  a  warrant  for  calling  a  meeting,  it  shall  be  the  duty  of 
the  assessors  to  insert  the  same  in  the  next  warrant  they  shall  issue 
for  that  purpose ;  and  no  matter  or  thing  shall  be  acted  upon  in 
such  a  manner  as  to  have  any  legal  operation  whatever  unless  the 
subject  matter  thereof  shall  be  inserted  in  the  warrant  for  calling 
the  meeting.  And  in  case  the  assessors  shall  unreasonably  refuse 
to  call  a  meeting,  or  a  parish  or  precinct  shall  have  no  assessors 
within  it  to  call  one,  or  not  a  major  part  of  the  assessors  or  com- 
mittee which  any  parish  may  agree  upon  to  be  chosen,  any  jus- 
tice of  the  peace,  for  the  same  county,  upon  the  application  of 
ten  or  more  of  the  voters  in  the  parish  or  precinct,  may  call  a 
meeting,  in  the  same  manner  as  a  justice  of  the  peace  is  by  law 
authorized  to  call  a  town  meeting. 

§  3.  And  he  it  further  enacted  hy  the  authority  aforesaid^ 
That  the  qualified  voters  aforesaid  at  any  parish  or  precinct, 
at  the  annual  meeting  in  March  or  April,  or  at  any  other  parish 
or  precinct  meeting  regularly  notified,  at  least  seven  days  before 
the  holding  thereof,  may  grant  and  vote  such  sum  or  sums  of 
money  as  they  shall  judge  necessary  for  the  settlement,  mainten- 
ance, and  support  of  ministers  or  public  teachers  of  rehgion  ;  for 
the  building  or  repairing  of  houses  of  public  worship,  and  all 
other  necessary  parish  or  precinct  charges,  to  be  assessed  on  the 
polls  and  property  within  the  same  as  by  law  provided.  And  the 
inhabitants  of  each  respective  parish  and  precinct  are  hereby 
declared  to  be  a  body  corporate,  and  as  such  may  conunence 
and  prosecute  any  action  or  suit  to  final  judgment  and  execution, 
in  any  court  proper  to  hear  and  determine  the  same,  and  may 
also  defend  any  suit  or  action  that  may  be  brought  against  them ; 
for  which  purposes  they  may  constitute  one  or  more  agents  or 
attorneys,  in  the  same  manner  as  towns  may  constitute  and 
appoint  agents;  and  the  evidence  of  their  appointment  may 
be  ascertained  in  the  same  manner. 

§  4.  And  he  it  further  enacted  hy  the  authority  aforesaid. 
That  where  any  town  or  district  consisting  of  but   one  pai'ish 


252  APPENDIX. 

only  has  been,  or  hereafter  shall  be,  divided  or  made  into  two 
or  more  precincts  or  parishes,  any  engagements  or  contracts 
entered  into  by  such  town  or  district,  before  such  division,  of 
a  precinct  or  parochial  nature  solely,  shall  not  by  such  division 
be  considered  as  released,  cancelled,  or  extinguished ;  but  the 
same  shall  remain  in  full  force,  and  be  obligatory  on  the  inhab- 
itants residing,  and  the  estates  lying,  within  the  limits  of  the 
first  parish  or  precinct  of  the  same  town  or  district,  who  shall  be 
deemed  and  taken  as  successors  to  the  town  or  district,  so  far  as 
relates  to  precinct  or  parochial  agreements  and  contracts,  to  every 
intent  and  purpose  whatever ;  provided  always^  that  all  debts  of 
a  precinct  or  parochial  nature,  that  are  or  shall  be  in  fact 
due  and  owing  from  any  town  or  district,  before  a  division 
thereof  into  precincts  or  parishes,  for  services  or  other  matters 
actually  done  and  performed,  for  the  general  benefit  of  the 
persons  who  shall  after  be  included  in  each  of  the  precincts  or 
parishes,  shall  in  no  respect  be  altered  or  devolved  upon  the  first 
parish  or  precinct,  as  the  successors  of  the  said  town  or  district, 
in  its  precinct  or  parochial  capacity,  anything  herein  contained 
to  the  contrary  notwithstanding. 

§  5.  And  he  it  further  enacted  hy  the  authority  aforesaid^ 
That  in  all  such  towns  or  districts  where  one  or  more  parishes 
or  precincts  shall  be  regularly  set  oft*  from  such  towns  or  districts, 
the  remaining  part  of  such  town  or  district  is  hereby  deemed, 
declared,  and  constituted  an  entire,  perfect,  and  distinct  parish  or 
precinct,  and  shall  be  considered  as  the  principal  or  first  parish  or 
precinct.     (This  act  passed  June  28,  1786.) 

B. 

Statute    1799,   Chapter   87. 

§  1.  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives, in  General  Court  assembled,  and  hy  the  authority  of  the 
same,  That  the  respective  churches  connected  and  associated 
in  public  worship  with  the  several  towns,  parishes,  precincts,  dis- 
tricts, and  other  bodies  politic,  being  religious  societies,  established 
according  to  law,  within  this  Commonwealth,  shall,  at  all  times, 
have,  use,  exercise,  and  enjoy  all  their  accustomed  privileges  and 


APPENDIX.  253 

liberties,  respecting  divine  worship,  church  order,  and  disciphne, 
not  repugnant  to  the  constitution  of  this  Commonwealth,  and  shall 
be  encouraged  in  the  peaceable  and  regular  enjoyment  and  prac- 
tice thereof. 

§  2.  Be  it  further  enacted^  That  every  corporate  town,  parish, 
precinct,  district,  or  other  body  politic,  or  religious  society  aforesaid, 
is  hereby  required  to  be  constantly  provided  with  a  public  Protest- 
ant teacher  of  piety,  religion  and  morality ;  and  in  default  of 
being  so  provided  and  supplied,  for  the  term  of  three  months  in 
every  six  months,  such  town,  parish,  precinct,  district,  and 
other  body  politic  or  religious  society,  which  shall,  in  the  judg- 
ment of  the  court  of  general  sessions  of  the  peace  for  the  same 
county,  be  adjudged  of  sufficient  ability  to  be  so  provided, 
shall  pay  a  fine,  for  a  first  offence,  of  a  sum  not  exceeding  sixty 
dollars,  nor  less  than  thirty  ;  and  for  each  and  every  like  offence 
after  the  first,  a  fine  not  exceeding  one  hundred  dollars,  nor  less 
than  sixty  dollars,  together  with  costs  of  prosecution ;  such  fine 
to  be  recovered  by  indictment  in  the  court  of  general  sessions 
of  the  peace,  in  the  county  where  such  delinquency  may  hap- 
pen, and  levied  on  the  inhabitants  composing  such  town,  parish, 
precinct,  district,  and  other  body  politic  and  religious  society, 
so  delinquent,  in  the  same  manner  as  other  fines  are  levied 
on  the  inhabitants  of  towns.  And  every  such  fine  shall  be  dis- 
posed of,  by  order  of  said  court,  to  the  support  of  the  pubHc  wor- 
ship of  God,  in  such  religious  society  in  the  same  county,  as, 
in  the  opinion  of  said  court,  shall  stand  most  in  need  thereof. 

§  3.  Be  it  further  enacted,  That  any  contract  made  by  such 
town,  parish,  precinct,  district,  and  other  body  politic,  or  religious 
society,  with  any  such  public  teacher  aforesaid,  as  may  be  by  them 
respectively  chosen  for  their  teacher  or  religious  instructor,  shall 
have  the  same  force,  and  be  as  binding  on  such  corporation  or 
rehgious  society,  as  any  other  lawful  contract;  and  all  courts 
of  competent  jurisdiction  shall  have  power  to  sustain  suits 
brought  to  enforce  their  performance.  And  in  order  that  all 
the  citizens  of  this  Commonwealth  may,  according  to  the  wise 
and  reasonable  provision  of  the  constitution,  be  alike  required 
to  contribute  to  the  support  of  their  public  teachers  aforesaid : 

§  4.  Be  it  further  enacted,  That  every  town,  parish,  precinct, 
22 


254  APPENDIX. 

district,  and  other  body  politic  and  religious  society  aforesaid,  is 
hereby  authorized  to  cause  all  sums  of  money  by  them  respectively 
voted  to  be  raised  from  time  to  time  in  any  legal  meeting  duly  as- 
sembled or  holden  for  that  purpose,  for  the  settlement  or  support 
of  any  public  teacher  or  teachers  as  aforesaid,  or  the  building  or 
repair  of  any  house  or  houses  of  public  worship,  to  be  assessed  on 
all  the  ratable  polls  of  each  particular  corporation  or  religious 
society  aforesaid  (the  polls  and  estates  of  Quakers  excepted),  in 
the  same  proportion  as  state  or  town  taxes  are  by  law  assessed. 
And  such  sums  of  money,  when  so  assessed  and  collected,  shall  be 
paid  to  the  treasury  of  such  town,  if  composed  of  one  parish  or 
society ;  if  otherwise,  to  the  treasurer  of  the  parish,  precinct,  dis- 
trict, or  other  body  politic  or  religious  society  aforesaid,  to  be  by 
him  paid  out  as  directed  and  ordered  by  the  selectmen  of  such 
town  or  district  committee  (where  chosen),  or  otherwise  by  the 
assessors  of  such  parish,  precinct,  and  other  body  politic,  or  re- 
ligious society,  for  the  purpose  for  which  such  money  was  raised  : 
Provided.,  however.,  That  when  any  person  taxed  in  any  such  tax 
or  assessment  voted  to  be  raised  as  aforesaid,  for  the  purpose 
aforesaid,  being,  at  the  time  of  voting  or  raising  any  such  tax  or 
assessment,  of  a  different  sect  or  denomination  from  that  of  the 
corporation,  body  politic,  or  religious  society  by  which  said  tax 
was  so  assessed,  shall  request  that  the  tax  set  against  him  or  her, 
in  the  assessment  made  for  the  purpose  aforesaid,  may  be  applied 
to  the  support  of  the  public  teacher  of  his  own  religious  sect  or 
denomination  ;  such  person  procuring  a  certificate  signed  by  the 
public  teacher  on  whose  instruction  he  usually  attends,  and  by 
two  other  persons  of  the  society  of  which  he  is  a  member  (hav- 
ing been  specially  chosen  a  committee  to  sign  such  a  certificate), 
in  substance  as  follows,  viz. :  We  the  subscribers,  A  B,  public  teach- 
er of  a  society  of  the  religious  sect  or  denomination  called 
in  the  town,  district,  precinct,  or  parish  of  and  C,  D,  E, 

F,  committee  of  said  society,  do  hereby  certify  that  doth 

belong  to  said  society  ;  and  that  he  (or  she,  as  the  case  may  be) 
frequently  and  usually,  when  able,  attends  with  us  in  our  stated 
meeting  for  religious  worship. 

VV^hich  certificate  having  been  produced  to  the  selectmen,  com- 
mittee, or  assessors  (as  the  case  may  require)  of  the  town,  dis- 


APPENDIX.  255 

trict,  parish,  precinct,  or  other  body  politic  or  religious  society,  by 
whom  he  or  she  has  been  taxed  as  aforesaid,  it  shall  be  sufficient  to 
require  them  respectively  to  order  and  direct  the  treasurer  of  such 
corporation  or  religious  society-to  pay  over  the  amount  of  such 
taxes,  so  applied  for,  to  the  use  of  the  public  teacher  of  the  re- 
ligious sect  or  denomination  to  which  such  applicant  belongs ;  and 
such  public  teacher  shall  thereby  be  entitled  to  receive  the  same. 

§5.  Be  it  further  enacted,  That  the  assessors  of  each  parish  or 
religious  society  of  this  Commonwealth  may  omit,  in  the  taxes  voted 
to  be  assessed  on  the  polls  and  estates  within  such  parish  or  so- 
ciety, such  persons  living  within  the  limits  of  the  same  as  belong 
to  and  usually  attend  public  worship  in  a  religious  society  of  a 
different  denomination.  Provided,  That  nothing,  in  this  act  con- 
tained shall  take  from  any  church  or  religious  society  in  the  town 
of  Boston,  or  any  other  town,  the  right  and  liberty  to  support  the 
public  worship  of  God  by  a  tax  on  pews,  or  other  established 
mode. 

§  6.  Be  it  further  enacted,  That  all  laws  providing  for  the  set- 
tlement of  ministers,  and  the  support  of  the  public  worship  of 
God,  made  prior  to  the  adoption  of  the  present  constitution  of  this 
Commonwealth,  be,  and  hereby  are,  repealed,  except  so  far  as  re- 
lates to  the  recovery  of  all  fines  and  penalties  accruing  under  the 
the  same,  the  fulfilment  of  all  contracts  made  under  and  by  virtue 
thereof. 

(This  act  passed  March  4,  1800.) 

C. 

General  Statutes  1860,  Chapter  30. 

Of  Pfirtshes  and  Religions  Societies. 

Section  1.  Every  religious  society  established  or  organized 
by  virtue  of  any  statute  shall  be  and  continue  a  body  corporate, 
with  the  powers  given  to  corporations  by  chapter  sixty-eight,  and 
the  powers,  privileges,  liabilities,  and  duties  set  forth  in  this  chap- 
ter ;  but  this  chapter  shall  not  enlarge  nor  diminish  the  powers  of 
taxation  enjoyed  by  any  religious  society  by  virtue  of  a  special 
law  or  act  of  incorporation,  nor  impair  existing  rights  of  property 
of  any  territorial  parish. 

Sect.  2.     Religious  societies,  whether  corporate  or  unincorpor- 


256  APPENDIX. 

ate,  shall  continue  to  have  and  enjoy  their  existing  rights,  privi- 
leges, and  immunities,  except  so  far  as  the  same  may  be  limited 
or  modified  by  the  provisions  of  this  chapter. 

Sect.  3.  The  respective  churches  connected  and  associated 
in  public  worship  with  such  religious  societies  shall  continue  to 
have,  exercise,  and  enjoy  all  their  accustomed  privileges  and  Hb- 
erties  respecting  divine  worship,  church  order,  and  discipline,  and 
shall  be  encouraged  in  the  peaceable  and  regular  enjoyment  and 
practice  thereof 

Sect.  4.  A  religious  society  that  is  not  incorporated,  or 
which  may  be  unable  to  assemble  in  the  usual  manner,  if  it  con- 
tains ten  or  more  qualified  voters,  may  organize  and  become  a 
corporation,  with  the  powers,  privileges,  duties,  habilities,  and  re- 
quirements of  such  societies,  and  may  hold  so  much  estate,  real  or 
personal,  as  may  be  necessary  for  the  objects  of  such  organization, 
and  no  more ;  but  all  the  powers  derived  from  such  organization 
may  be  revoked  by  the  legislature. 

Sect.  5.  Any  justice  of  the  peace  for  the  county  in  which 
such  society  may  be,  upon  application  in  writing  by  five  or  more 
of  the  qualified  voters  thereof,  may  issue  his  warrant  directed  to 
some  one  of  the  applicants,  stating  the  objects,  and  requiring  him 
to  warn  the  qualified  voters  of  the  society  to  meet  at  a  time  and 
place  appointed  in  the  warrant ;  and  the  same  may  be  served  by 
posting  an  attested  copy  thereof  on  the  principal  outer  door  of 
the  meeting-house,  or  leaving  such  copy  with  or  at  the  last  and 
usual  place  of  abode  of  such  voters,  seven  days  at  least  before  such 
meeting ;  and,  upon  due  return  thereof,  the  same  justice,  or  any  oth- 
er justice  of  the  peace  for  the  county,  may  preside  at  the  meeting 
for  the  choice  and  cpiallfication  of  a  clerk,  who  shall  enter  at  large 
upon  the  record:?  of  the  society  the  proceedings  had  in  the  organ- 
ization thereof;  and  the  society  may  thereupon  proceed  to  choose 
a  moderator,  and  do  such  other  things  as  parishes  are  by  law 
authorized  to  do  at  their  annual  meetings  :  provided,  the  subject 
matter  thereof  is  inserted  in  the  warrant. 

Sect.  6.  Persons  belonging  to  a  religious  society  shall  be  held 
to  be  members  until  they  file  with  the  clerk  a  written  notice  de- 
claring the  dissolution  of  their  membership ;  and  they  shall  not  be 
liable  ibr  any  grant  or  contract  thereafter  made  or  entered  into 


APPENDIX.  26t 

by  such  society.  No  person  shall  be  made  a  member  of  such 
society  without  his  consent  in  writing. 

Sect.  7.  Every  religious  society  may  make  by-laws  not  re- 
pugnant to  the  laws  of  the  Commonwealth,  and  therein  prescribe 
the  manner  in  which  persons  may  become  members. 

Sect.  8.  No  person  shall  have  a  right  to  vote  in  the  affairs  of 
such  society  unless  he  is  a  member  thereof. 

Sect.  9.  The  quahfied  voters  of  every  parish  and  incorpor- 
ated rehgious  society,  and  of  every  society  organized  according  to 
the  provisions  of  this  chapter,  shall  hold  an  annual  meeting  in 
the  month  of  March  or  April,  or  at  such  other  time  as  they  may 
prescribe  by  their  by-laws,  and,  if  the  by-laws  do  not  otherwise 
determine,  at  a  time  and  place  appointed  by  their  assessors  or 
standing  committee  ;  and  at  such  meeting  shall  choose  a  moderator, 
clerk,  two  or  more  assessors,  a  treasurer  and  collector,  and  such 
other  officers  as  they  think  necessary,  all  of  whom,  except  the 
moderator,  shall  continue  in  office  till  the  next  annual  meeting,  and 
till  others  are  chosen  and  quahfied  in  their  stead. 

Sect.  1 0.  Moderators  of  meetings  held  for  the  choice  of  officers 
shall  be  elected  by  written  ballots.  Clerks,  assessors,  treasurers, 
and  collectors,  shall  be  elected  by  written  ballot  and  shall  be 
sworn.  Other  officers  may  be  elected  in  such  mode  as  the  society 
may  determine. 

Sect.  11.  The  prudential  affairs  of  such  societies  shall  be 
managed  by  their  assessors,  or  a  standing  committee  specially  ap- 
pointed for  that  purpose  ;  and  the  assessors  or  committee  shall 
have  like  authority  for  calling  meetings  as  selectmen  have  for  call- 
ing town  meetings. 

Sect.  12.  If  there  are  no  assessors  or  conunittee,  or  if  they 
unreasonably  refuse  to  call  a  meeting,  any  justice  of  the  peace 
for  the  county,  upon  the  application  of  not  less  than  five  qualified 
voters,  may  call  one  in  the  manner  provided  in  section  five. 

Sect.  13.  The  assessors  or  committee  shall  insert  in  the  next 
warrant  they  issue  for  calling  a  meeting  any  matter  which  not 
less  than  five  qualified  voters  of  the  society  in  writing  request. 
Nothing  acted  upon  shall  have  any  legal  operation,  unless  the 
subject  matter  thereof  was  inserted  in  the  warrant. 

Sect.  14.  Meetings  shall  be  warned  in  the  manner  provided 
22* 


258  APPENDIX. 

by  any  by-law  or  vote  of  the  society,  and,  when  no  provision  is 
made,  in  such  manner  as  the  assessors  or  standing  committee  in 
their  warrant  for  such  meeting  direct. 

Sect.  15.  The  clerk,  or  if  there  is  no  clerk  or  he  is  absent, 
the  assessors  or  the  standing  committee,  or  any  one  of  them,  shall 
preside  in  the  choice  of  a  moderator  ;  and  a  clerk  may  then  be 
chosen,  either  pro  tempore  or  to  fill  the  vacancy,  as  the  case  may 
require.  The  moderator  may  administer  the  oath  of  office  to  the 
clerk  ;  and  the  clerk  to  the  assessors  and  collector  ;  or  said  oaths 
may  be  administered  by  a  justice  of  the  peace  ;  and  they  shall  be 
substantially  the  same  as  are  required  to  be  taken  by  the  clerk, 
assessors,  and  collectors  of  towns. 

Sect.  16.  The  moderator  shall  have  the  same  power  as  the 
moderator  of  a  town  meeting ;  and  persons  guilty  of  disorderly 
behavior  at  a  meeting  shall  be  subject  to  the  penalties  and  punish- 
ments provided  for  hke  offences  in  town  meetings. 

Sect.  1 7.  If  the  person  chosen  collector  is  present,  and  ac- 
cepts the  office,  he  shall  forthwith  be  sworn.  If  not  present,  he 
shall  be  summoned  to  take  the  oath  by  a  constable,  or  any  person 
whom  the  clerk  or  assessors  may  appoint  for  the  purpose.  Upon 
the  refusal  or  neglect  of  a  person  present  to  accept  the  office  at 
the  time,  and  upon  the  neglect  of  a  person  so  summoned,  for  the 
space  of  seven  days,  to  appear  and  take  the  oath,  the  society  shall 
proceed  to  a  new  choice ;  and  so  from  time  to  time,  until  some 
person  accepts  and  is  sworn. 

Sect.  18.  Vacancies  in  any  of  the  annual  offices,  occuring 
after  the  annual  meeting,  may  be  filled  at  any  other  legal  meet>- 
ing. 

Sect.  19.  The  rector,  or  one  of  the  wardens,  of  religious  so- 
cieties belonging  to  the  body  of  Christians  known  as  the  Protestant 
Episcopal  Church,  organized  under  the  laws  of  the  Commonwealth, 
may,  unless  it  is  otherwise  provided  in  some  by-law,  preside  at 
their  meetings  with  all  the  powers  of  a  moderator ;  and  the  ward- 
ens, or  wardens  and  vestry,  may  exercise  all  the  powers  of  a  stand- 
ing committee  in  accordance  with  the  usage  and  discipline  of  said 
church.  Unless  they  assess  or  collect  a  tax  on  the  polls,  estates, 
or  pews,  of  the  members  thereof,  such  societies  need  not  choose  a 
collector  or  assessors  ;  and  they  may  in  their  by-laws  provide,  that 


APPENDIX,  269 

the  duties  of  assessors  shall  be  performed  by  the  wardens.  But 
the  officers  upon  whom  the  duties  of  standing  committee  or  asses- 
sors may  devolve  shall  in  all  cases  be  elected  by  ballot. 

Sect.  20.  The  qualified  voters  of  each  religious  society,  at 
the  annual  meeting,  or  at  any  other  meeting  regularly  notified 
seven  days  at  least  before  the  holding  thereof,  may  grant  and  vote 
such  sums  of  money  as  they  judge  necessary  for  the  settlement, 
maintenance,  and  support  of  ministers  or  public  teachers  of  re- 
ligion ;  for  the  building  or  repairing  of  houses  of  public  worship ; 
for  sacred  music ;  for  the  purchase  and  preservation  of  burial- 
grounds  ;  and  for  all  other  necessary  parish  charges ;  which  sums 
shall  be  assessed  on  the  polls  and  estates  of  all  the  members  of 
the  society,  in  the  same  manner  and  proportion  as  town  taxes  are 
by  law  assessed. 

Sect.  21.  The  assessors  shall  assess  the  taxes  upon  the  prop- 
erty (not  exempted  by  law  from  taxation)  of  all  the  members  of 
the  society,  including  their  real  estate  within  the  state,  in  what- 
ever part  thereof  it  may  be  situated,  and  their  personal  estate, 
wherever  the  same  may  be  ;  and  no  citizen  shall  be  hable  to  pay 
a  tax  for  the  support  of  public  worship  or  other  parish  charges,  to 
a  society  other  than  that  of  which  he  is  a  member. 

Sect.  22.  No  corporation  shall  be  taxed  for  any  parochial 
purpose.  Nor  shall  any  person  be  taxed  in  a  parish  or  religious 
society  for  property  held  by  him  as  guardian  or  trustee. 

Sect.  23.  Every  society  may  appoint  its  treasurer  collector 
of  taxes ;  who  shall  have  like  powers  and  proceed  in  like  man- 
ner, in  enforcing  the  collection  of  such  taxes  after  the  expiration 
of  the  time  fixed  by  the  society  for  the  payment  thereof,  as  pro- 
vided in  chapter  twelve  for  the  collection  of  taxes  by  collectors 
of  towns ;  and  any  society  may  authorize  its  treasurer  and  col- 
lector to  make  an  abatement  of  such  sum,  as  it  may  agree  upon 
at  its  annual  meeting,  to  those  who  make  voluntary  payment  of 
their  taxes  within  such  periods,  as  may  be  determined  by  the  so- 
ciety. 

Sect.  24.  Unincorporated  rehgious  societies  shall  have  Hke 
power  to  manage,  use,  and  employ,  any  donation,  gift,  or  gi-ant, 
made  to  them,  according  to  its  terms  and  conditions,  as  incorpo- 
rated societies  have,  by  law ;  may  elect  suitable  trustees,  agents,  or 


260  APPENDIX. 

officers  therefor ;  and  sue  for  any  right  which  may  vest  in  them 
in  consequence  of  such  donation,  gift,  or  grant ;  for  which  pur- 
poses they  shall  be  corporations. 

Sect.  25.  Incorporated  and  unincorporated  religious  societies 
may  appoint  trustees,  not  exceeding  five  in  number,  to  hold  and 
manage  trust  funds  for  their  benefit,  who  shall  hold  their  offices 
five  years  and  until  others  are  appointed  in  their  stead,  with 
power  to  fill  vacancies  for  an  unexpired  term  occurring  in  their 
board.  Such  societies,  at  or  before  the  time  of  the  first  appoint- 
ment of  the  trustees,  may  estabhsh  rules  and  regulations  for  their 
government,  which  shall  be  considered  as  of  the  nature  of  a  con- 
tract, and  not  subject  to  alteration  or  amendment  except  by  all 
the  trustees  in  office  at  the  time,  and  by  a  two-thirds  vote  of  the 
society  interested  therein. 

Sect.  26.  The  terms  "religious  society  "  and  "society,"  in 
the  preceding  sections,  shall  include  parishes. 

Sect.  27.  Persons  owning  or  proposing  to  build  a  house  of 
public  worship  may  organize  themselves  in  the  same  manner  as 
religious  societies  are  authorized  to  do  by  the  provisions  of  this 
chapter ;  and  shall  thereupon  become  a  corporation,  with  the 
powers,  privileges,  duties,  restrictions,  and  liabilities,  set  forth  in 
chapter  sixty-eight,  and  in  the  following  sections  ;  but  all  the 
powers  derived  from  such  organization  may  be  revoked  by  the 
legislature. 

Sect.  28.  Every  such  corporation  may  hold  so  much  real  and 
personal  estate,  in  addition  to  its  meeting-house,  as  may  be  neces- 
sary for  its  objects,  and  as  has  been  agreed  and  determined  on  at  the 
meeting  held  for  the  purpose  of  organization  ;  and  the  annual  in- 
come thereof  shall  be  applied  to  parochial  purposes. 

Sect.  29.  The  clerk  of  every  such  corporation  shall,  within 
ten  days  of  such  meeting,  leave  with  the  clerk  of  the  town  or  city 
in  which  such  house  of  worship  is  situated,  or  is  about  to  be  built,  a 
true  copy  of  the  record  of  the  proceedings.  If  he  fails  so  to  do, 
the  organization  shall  be  void.  The  copy  shall  be  recorded  by 
the  clerk  receiving  it  in  a  book  kept  for  the  purpose,  for  which  he 
shall  receive  the  fee  of  the  register  of  deeds  for  like  services. 

Sect.  30.  When  the  proprietors  deem  it  expedient  to  alter, 
enlarge,  repair,  rebuild,  or  remove  their  house,  or  build  a  new 


APPENDIX.  261 

one,  they  may,  at  a  legal  meeting  called  for  that  purpose,  raise 
such  sums  of  money  as  they  may  judge  necessary  for  the  purpose, 
and  to  purchase  land  necessary  therefor. 

Sect.  31.  A  meeting  of  the  proprietors  for  any  of  the  pur- 
poses aforesaid,  may  be  called  in  the  manner  prescribed  in  the 
by-laws  or  votes  of  the  corporation,  or  by  a  warrant  granted  by  a 
justice  of  the  peace  on  application  in  writing  by  any  five  of  said 
proprietors,  which  warrant  shall  be  directed  to  one  of  the  applicants ; 
or  such  meeting  may  be  called  by  a  notification  by  the  clerk  of 
the  proprietors,  who  shall  warn  a  meeting  on  a  like  application  to 
him ;  and  in  either  case  the  meeting  may  be  warned  by  notifica- 
tion served  as  provided  in  section  five. 

Sect.  32.  Money  raised  may  be  assessed  on  the  pews  in  such 
house,  and  the  assessment  may  be  committed  to  the  treasurer  of 
the  proprietors,  who  shall  forthwith  give  notice,  by  posting  up  an 
advertisement  at  the  principal  outer  door  of  the  house,  stating  the 
completion  of  such  assessment,  and  the  day  of  deHvery  thereof  to 
him ;  and  if  any  part  of  said  taxes  remains  unpaid  for  three 
months  afterwards,  the  treasurer  shall  collect  the  same  forthwith 
by  sales  at  public  auction  of  the  pews  whereon  the  same  remains 
unpaid,  in  the  manner  provided  in  the  following  sections. 

Sect.  33.  The  treasurer  shall  post  up  a  notification  of  the  in- 
tended sale  of  a  pew  for  taxes  at  the  principal  outer  door  of  such 
house,  at  least  three  weeks  before  the  time  of  sale,  setting  forth 
the  number  of  the  pew,  if  any,  the  name  of  the  owner  or  occu- 
pant, if  known,  and  the  amount  of  the  tax  due  thereon  ;  and  if 
any  part  of  the  said  tax  remains  unpaid  at  the  time,  the  treasurer 
shall  sell  the  pew  at  public  auction,  to  the  highest  bidder,  and 
shall  execute  and  deliver  to  the  purchaser  a  sufficient  deed  of 
conveyance.  The  money  arising  from  the  sale,  beyond  the  taxes 
and  incidental  reasonable  charges,  shall  be  paid  by  the  treas- 
urer to  the  former  owner  of  the  pew,  or  to  his  assigns. 

Sect.  34.  An  affidavit  annexed  to  an  original  notification  or 
to  a  copy  thereof,  made  before  a  justice  of  the  peace,  and  re- 
corded on  the  proprietors'  records  within  six  months  next  after 
such  sale,  shall  be  allowed  as  one  mode  of  proof  of  the  posting 
up  of  the  notifications  herein  before  required. 

Sect.  35.     Such  proprietors,  for  the  purpose  of  building  a  new 


262  APPENDIX. 

house,  or  of  altering,  enlarging,  repairing,  rebuilding,  or  remov- 
ing, their  house  already  built,  may  sell  their  house,  or  take  down 
any  pews  therein ;  the  pews  taken  being  first  appraised  by  three 
or  more  disinterested  persons  chosen  by  the  proprietors  for  that 
purpose.  The  pews  newly  erected  shall  be  sold  by  their  treasurer 
at  public  auction  to  the  highest  bidder,  and  deeds  thereof  given  in 
like  manner  as  when  pews  are  sold  for  the  paj-ment  of  taxes. 
The  money  arising  from  such  sale  shall  be  applied,  so  far  as  may 
be  necessary,  to  paying  the  appraised  value  of  the  pews  taken 
down  ;  and  the  deficiency,  if  any,  shall  be  paid  by  the  proprietors 
of  such  house,  within  thirty  days  after  the  sale. 

Sect.  36.  Under  the  regulations  of  the  preceding  section,  a 
parish  or  religious  society,  whenever  it  deems  it  necessary  for  the 
purpose  of  building  a  new  house,  or  of  altering,  enlarging,  remov- 
ing, or  rebuilding,  its  house  already  built,  may  take  down  any 
pews  therein,  or  sell  the  house. 

Sect.  37.  Nothing  contained  in  the  two  preceding  sections 
shall  entitle  a  person  to  compensation  for  a  pew  so  taken  down, 
when  such  house  is  unfit  for  the  purposes  of  public  worship. 

Sect.  38.  Pews  shall  be  personal  estate.  But  this  provision 
shall  not  affect  any  existing  right  of  dower. 

Sect.  39.  Corporations  for  religious  purposes  may  assess  upon 
the  pews  in  a  church  or  meeting-house  which  they  have  erected 
or  procured  for  public  worship  since  the  twenty-fifth  day  of  March, 
eighteen  hundred  and  forty-five,  according  to  a  valuation  of  said 
pews,  which  shall  first  be  agreed  upon  and  recorded  by  the  clerk, 
sums  of  money  for  the  support  of  pubUc  worship  and  other  paro- 
chial charges,  and  for  the  repairs  of  the  house.  Such  assessments 
may  be  collected  in  the  manner  provided  in  sections  thirty-two 
and  thirty-three. 

Sect.  40.  A  corporation  which  had  erected  or  procured  such 
house  prior  to  the  twenty-fifth  day  of  March,  eighteen  hundred 
and  forty-five,  may  avail  itself  of  the  provisions  of  the  preceding 
section,  if  the  consent  of  all  the  pew-owners  is  obtained,  or  two- 
thirds  of  the  members  present  and  voting  at  a  regular  meeting 
called  for  that  purpose  so  determine. 

Sect.  41.  A  religious  society,  which  votes  to  avail  itself  of  the 
provisions  of  section  thirty-nine,  shall,  upon  the  application  of  a 


APPENDIX.  263 

person  owning  one  or  more  pews  in  its  house,  within  one  year 
after  said  vote,  purchase  the  same  at  the  appraised  vahie.  Such 
appraisal  shall  be  made  by  three  disinterested  persons  who  may  be 
chosen,  one  by  the  pew-owner,  one  by  the  society,  and  the  third 
by  the  two  persons  thus  chosen. 

Sect.  42.  Any  religious  society,  complying  with  the  requisi- 
tions of  the  two  preceding  sections,  shall  be  entitled  to  the  privi- 
leges and  subject  to  the  liabilities  incident  to  those  religious  so- 
cieties which  have  erected  or  procured  a  meeting-house  for  public 
worship  since  the  twenty-fifth  day  of  March,  in  the  year  eighteen 
hundred  and  forty-five. 

Sect.  43.  The  trustees  of  any  society  of  the  Methodist  Epis- 
copal Church,  or  of  the  African  Methodist  Episcopal  Church,  ap- 
pointed according  to  the  discipline  or  usages  thereof  respectively, 
or  as  such  society  chooses,  may  organize  and  become  a  corporation, 
with  powers,  privileges,  duties,  and  liabilities,  of  'chapter  sixty- 
eight,  subject,  however,  to  account  to  the  quarterly  meeting  of 
such  society,  according  to  such  discipline  and  usages.  But  all 
powers  derived  from  such  organization  may  be  revoked  by  the 
legislature. 

Sect.  44.  Such  trustees  may  receive,  hold,  and  manage  all 
the  property,  both  real  and  personal,  belonging  to  such  society, 
and  sell  and  convey  the  same,  and  hold  in  trust  gifts,  grants,  be- 
quests, or  donations,  made  to  such  society  for  the  supportr  of  pub- 
lic worship  and  other  religious  purposes  :  provided.,  that  the  annual 
income  thereof,  exclusive  of  the  meeting-house,  shall  not  exceed 
four  thousand  dollars. 

Sect.  45.  The  first  meeting  of  such  trustees  may  be  called  by 
a  justice  of  the  peace,  upon  the  application  of  three  or  more  of 
the  trustees ;  at  which  they  may  choose  a  secretary  and  other 
ofiicers.  The  provisions  of  this  chapter  in  relation  to  the  warning 
and  organization  of  meetings  of  religious  societies  shall,  so  far  as 
the  same  are  applicable,  be  in  force  in  regard  to  meetings  for 
the  organization  of  such  trustees.  The  secretary,  before  entering 
upon  the  duties  of  his  office,  shall  be  sworn  to  the  faithful  dis- 
charge of  the  same,  and  a  record  of  such  oath  shall  be  kept  in  the 
records  of  their  proceedings. 

Sect.  46.     An  attested  copy  of  the  record  of  the  proceedings 


264  APPENDIX. 

at  such  organization  shall  be  left  with  the  town  or  city  clerk,  and 
recorded  within  the  time  and  in  the  manner  prescribed  in  section 
twenty-nine.  If  the  secretary  omits  to  leave  such  copy  within  the 
time  specified,  the  organization  shall  be  void. 

General  Statutes  1860,  Chapter  31. 
Of  Donations  and  Conveyances  for  Pious  and  Charitable  Uses. 

Section  1.  The  deacons,  church-wardens,  or  other  similar 
officers,  of  all  churches  or  religious  societies,  if  citizens  of  this  Com- 
monwealth, shall  be  deemed  bodies  corporate,  for  the  purpose  of 
taking  and  holding  in  succession  all  grants  and  donations,  whether 
of  real  or  personal  estate,  made  either  to  them  and  their  successors, 
or  to  their  respective  churches,  or  to  the  poor  of  their  churches. 

Sect.  2.  When  the  ministers,  elders,  or  vestry,  of  a  church 
are,  in  the  grants  or  donations  mentioned  in  the  preceding  section, 
joined  with  such  deacons  or  church-wardens  as  donees  or  grantees, 
such  officers  and  their  successors,  together  with  the  deacons  or 
church-wardens,  sliall  be  deemed  the  corporation  for  the  purposes 
of  such  grants  and  donations. 

Sect.  3.  The  minister  of  every  church  or  religious  society, 
of  whatever  denomination,  if  a  citizen  of  this  Commonwealth, 
shall  be  capable  of  taking  in  succession  any  parsonage  land  granted 
to  the  minister  and  his  successors,  or  to  the  use  of  the  ministers, 
or  granted  by  any  words  of  like  import ;  and  may  prosecute  and 
defend  in  all  actions  touching  the  same. 

Sect.  4.  No  conveyance  of  the  lands  of  a  church  shall  be 
effectual  to  pass  the  same,  if  made  by  the  deacons  without  the  con- 
sent of  the  church,  or  of  a  committee  of  the  church  appointed 
for  that  purpose,  or  if  made  by  the  church-wardens  without  the 
consent  of  the  vestry. 

Sect.  5.  No  conveyance  by  a  minister  of  lands  held  by  him 
in  succession  shall  be  valid  any  longer  than  he  continues  to  be 
such  minister,  unless  such  conveyance  is  made  with  the  consent  of 
the  town,  parish,  or  religious  society,  of  which  he  is  minister,  or 
unless  he  is  the  minister  of  an  Episcopal  church,  and  nuikes  the 
conveyance  with  the  consent  of  the  vestry. 

Sect.  6.  The  several  churches,  other  than  those  of  the  Epis- 
copal denomination,  may  choose  committees  for  the  purpose  of  set- 


APPENDIX.  265 

tling  the  accounts  of  the  deacons  and  other  church  officers,  and,  if 
necessary,  to  commence  and  prosecute  suits  in  the  name  of  the 
church  against  the  deacons  or  other  officers  touching  the  same. 

Sect.  7.  The  income  of  such  grant  or  donation,  made  to  or 
for  the  use  of  a  church,  shall  not  exceed  the  sum  of  two  thousand 
dollars  a  year,  exclusive  of  the  income  of  any  parsonage  lands 
granted  to  or  for  the  use  of  the  ministry. 

Sect.  8.  The  overseers  of  each  monthly  meeting  ^  the  peo- 
ple called  Friends,  or  Quakers,  shall  be  a  body  corporate,  for  the 
purpose  of  taking  and  holding  in  succession  grants  and  donations 
of  real  or  personal  estate  made  to  the  use  of  such  meeting,  or  to 
the  use  of  any  preparative  meeting  belonging  thereto ;  and  may 
aliene  or  manage  such  estate  according  to  the  terms  and  conditions 
of  the  grants  and  donations,  and  prosecute  and  defend  in  any 
action  touching  the  same  :  provided^  that  the  income  of  the  grants 
and  donations  to  any  one  of  such  meetings  for  the  uses  aforesaid 
shall  not  exceed  the  sum  of  five  thousand  dollars  a  year. 

Sect.  9.  All  trustees,  whether  incorporated  or  not,  who  hold 
funds  given  or  bequeathed  to  a  city  or  town  for  any  charitable, 
religious,  or  educational  purpose,  shall  make  an  annual  exhibit  of 
the  condition  of  such  funds  to  the  board  of  aldermen  of  the  city, 
or  the  selectmen  of  the  town,  to  which  such  funds  have  been  given 
or  bequeathed ;  and  all  transactions  by  the  trustees  concerning  such 
funds  shall  be  open  to  inspection  by  the  board  of  aldermen  of  the 
city,  or  selectmen  of  the  town,  to  which  the  returns  are  made. 

Sect.  10.  The  probate  court  for  the  county  in  which  the  city 
or  town  is  situated,  to  which  funds  have  been  given  or  bequeathed 
as  aforesaid,  may,  on  the  petition  of  five  persons,  cite  all  parties 
interested  to  appear  before  the  court  to  answer  all  complaints 
which  may  then  and  there  be  made ;  and  if  a  ti'ustee  has  neg- 
lected or  refused  to  render  such  annual  exhibit,  or  is  incapable  of 
discharging  the  trust  reposed,  or  unsuitable  to  manage  the  affairs 
of  the  same,  the  court  may  remove  such  trustee,  and  supply  the 

vacancy. 

General  Statutes  1860,  Chapter  32. 

Of  Associations  for  Eeligious,  Charitable,  and  Educational  Parposts. 
Section  1.     Seven  or  more  persons  within  this  state,  having 
associated  themselves  by  agreement  in  writing  for  educational, 
23 


266  APPENDIX. 

charitable,  or  religious  purposes,  under  any  name  by  them  as- 
sumed, and  complying  with  the  provisions  of  this  chapter,  shall, 
with  their  successors,  be  and  remain  a  body  politic  and  corporate. 

Sect.  2.  The  purpose  of  such  corporation,  and  the  place 
within  which  it  is  established  or  located,  shall  be  distinctly  speci- 
fied in  its  articles  of  association ;  which  articles,  and  all  amend- 
ments thereto,  shall  be  recorded  in  the  office  of  the  register  of 
deeds  for»the  county  or  district  wherein  such  place  is  situated ; 
and  such  corporation  shall  appropriate  its  funds  to  no  other  pur- 
pose. 

Sect.  3.  Corporations  organized  under  this  chapter  shall  have 
the  powers  and  privileges,  and  be  subject  to  the  duties,  liabilities, 
and  restrictions,  set  forth  in  chapter  sixty-eight,  so  far  as  the 
same  may  be  applicable. 

Sect.  4.  Such  corporations  may  hold  real  and  personal  estate, 
necessary  for  the  purposes  of  their  organization,  to  an  amount  not 
exceeding  one  hundred  thousand  dollars. 

Sect.  5.  Their  estate  shall  not  be  exempted  from  taxation  in 
any  case  where  part  of  their  income  or  profits  of  their  business  is 
divided  among  members  or  stockholders,  or  where  any  portion  of 
such  estate  is  used  or  appropriated  for  other  than  educational, 
charitable,  or  religious  purposes. 

D. 

General  Statutes  1860,  Chapter  28. 
Of  Cemeteries  and  Burials. 

Section  1.  Ten  or  more  persons  desirous  of  procun'ng,  estab- 
lishing, and  preparing  a  cemetery  or  burial-place,  or  being  the 
majority  in  interest  of  the  proprietors  of  an  existing  cemetery,  may 
organize  as  a  corporation  in  the  manner  provided  in  chapter  sixty- 
seven.  But  in  the  case  of  an  existing  cemetery,  the  corporation 
shall  not  make  sale  of  nor  impair  the  right  of  any  proprietor. 

Sect.  2.  Such  corporation  shall  have  the  powers  and  privi- 
leges, and  be  subject  to  the  duties,  restrictions,  and  liabilities,  of 
chapter  sixty-eight,  and  to  the  provisions  of  the  first  sixteen  sec- 
tions of  chapter  sixty-seven  ;  may  take  and  hold  so  much  real 
and  personal  estate  as  may  be  necessary  for  the  objects  of  its  or- 


APPENDIX.  267 

ganizatlon,  which  shall  be  applied  exclusively  to  the  furtherance 
of  such  objects ;  may  lay  out  such  real  estate  into  lots,  and  upon 
such  terms,  conditions,  and  regulations  as  the  corporation  shall 
prescribe  ;  may  grant  and  convey  the  exclusive  right  of  burial  in, 
and  of  erecting  tombs  or  cenotaphs  upon,  any  lot,  and  of  orna- 
menting the  same. 

Sect.  3.  Lots  in  such  cemetery  shall  be  held  indivisible,  and 
upon  the  decease  of  a  proprietor,  his  heirs  at  law,  or  the  devisees 
of  such  lot  if  devised,  shall  succeed  to  his  privileges.  If  there  is 
more  than  one  heir  or  devisee,  they  shall,  within  nine  months  from 
such  decease,  designate  in  writing  to  the  clerk  of  the  corporation 
which  of  their  number  shall  represent  the  lot ;  and  on  their  fail- 
ure so  to  designate,  the  board  of  trustees  or  directors  of  the  cor- 
poration shall  enter  on  record  which  of  said  heirs  or  devisees  shall 
represent  the  lot  while  such  failure  continues. 

Sect.  4.  Each  town  and  city  shall  provide  one  or  more  suitable 
places  for  the  interment  of  persons  dying  within  its  limits. 

Sect.  5.  Except  in  the  case  of  the  erection  or  use  of  a  tomb 
on  private  land  for  the  exclusive  use  of  the  family  of  the  owner, 
no  land,  other  than  that  already  so  used  or  appropriated,  shall  be 
used  for  the  purpose  of  burial,  unless  by  permission  of  the  town, 
or  of  the  mayor  and  aldermen  of  the  city  in  which  the  same  is 
situated. 

Sect.  6.  Boards  of  health  may  make  all  regulations  which 
they  judge  necessary  concerning  burial-grounds,  and  interments 
within  their  respective  limits ;  may  prohibit  the  use  of  the  tombs 
by  undertakers  (as  places  of  deposit  for  bodies  committed  to  them 
for  burial)  for  the  purpose  of  speculation,  and  may  establish  pen- 
alties not  exceeding  one  hundred  dollars  for  any  breach  of  such 
regulations. 

Sect.  7.  Notice  of  such  regulations  shall  be  given  by  pub- 
lishing the  same  in  some  newspaper  of  the  town,  or  city,  or,  if 
there  is  no  such  newspaper,  by  posting  a  copy  in  some  public  place 
therein  ;  which  shall  be  deemed  legal  notice  to  all  persons. 

Sect.  8.  Before  a  tomb,  burial-ground,  or  cemetery  is  closed 
by  order  of  the  board  of  health,  for  a  time  longer  than  one  month, 
all  persons  interested  shall  have  an  opportunity  to  be  heard ;  and 
personal  notice  of  the  time  and  place  of  hearing  shall  be  given  to 


268  APPENDIX. 

at  least  one  owner  of  the  tomb,  and  to  three  at  least,  if  so  many- 
there  are,  of  the  proprietors  of  such  burial-ground  or  cemetery, 
and  notice  shall  also  be  pubhshed  two  successive  weeks,  at  least, 
preceding  such  hearing,  in  two  newspapers,  if  so  many  there  are 
published  in  the  county. 

Sect.  9.  The  owner  of  a  tomb  aggrieved  by  the  order  of  the 
board  of  health  closing  any  tomb,  burial-ground,  or  cemetery,  may 
appeal  therefrom,  and  at  any  time  within  six  months  from  the 
date  of  the  order  enter  his  appeal  in  the  superior  court ;  and  the 
appellant  shall  give  the  board  of  health  fourteen  days'  notice  of 
his  appeal  previous  to  the  entry  thereof  But  the  order  of  the 
board  shall  remain  in  force  until  a  decision  shall  be  had  on  the 
appeal. 

Sect.  10.  Appeals  shall  be  tried  in  regular  course  before  a 
jury ;  and  if  the  jury  find  that  the  tomb,  burial-ground,  or  cem- 
etery, so  closed,  was  not  a  nuisance,  nor  injurious  to  the  public 
health  at  the  time  of  the  order,  the  court  shall  rescind  the  same 
so  far  as  it  affects  such  tomb,  burial-ground,  or  cemetery,  and  ex- 
ecution for  costs  of  the  appeal  shall  issue  in  favor  of  the  appellant 
against  the  town  or  city  in  which  the  same  was  situated.  But  if 
the  order  is  sustained,  execution  shall  issue  for  double  costs  against 
the  appellant  in  favor  of  the  board  of  health  for  the  use  of  the 
town  or  city. 

Sect.  11.  For  every  interment  in  violation  of  section  five  in 
in  a  town  or  city  in  which  the  notice  prescribed  in  section  seven 
has  been  given,  the  owner  of  the  land  so  used  shall  forfeit  not 
less  than  twenty  nor  more  than  one  hundred  dollars. 

Sect.  12.  Whoever  wrongfully  destroys,  impairs,  injures,  or 
removes  a  tomb,  gravestone,  building,  fence,  railing,  or  other 
thing,  lawfully  erected  in  or  around  a  place  of  burial  or  cemetery, 
or  a  tree,  shrub,  or  plant,  situate  within  its  limits  ;  or  wrongfully 
injures  a  walk  or  path  therein ;  or  places  rubbish  or  offensive 
matter  within  a  place  of  burial  or  cemetery ;  or  commits  any  nui- 
sance therein ;  or  in  any  way  desecrates  or  disfigures  the  same, 
shall  forfeit  for  every  such  offence  not  less  than  five  nor  more 
than  one  hundred  dollars.  Upon  the  trial  of  a  prosecution  for 
the  recovery  of  such  penalty,  use  and  occupation  for  the  purposes 
of  burial  shall  be  deemed  sufficient  evidence  of  title. 


APPENDIX.  269 

E. 

General  Statutes  1860,  Chapter  84. 
Of  ike  Observance  of  the  Lord's  Day. 

Section  1.  Whoever  keeps  open  his  shop,  warehouse,  or 
workhouse,  or  does  any  manner  of  labor,  business,  or  work, 
except  works  of  necessity  and  charity,  or  is  present  at  any 
dancing  or  public  diversion,  show,  or  entertainment,  or  takes 
part  in  any  sport,  game,  or  play,  on  the  Lord's  day,  shall  be 
punished  by  a  fine  not  exceeding  ten  dollars  for  every  offence. 

Sect.  2.  Whoever  travels  on  the  Lord's  day,  except  fix)m 
necessity  or  charity,  shall  be  punished  by  fine  not  exceeding 
ten  dollars  for  every  offence. 

Sect.  3.  Whoever,  keeping  a  house,  shop,  cellar,  or  place  of 
public  entertainment  or  refreshment,  entertains  therein  on  the 
Lord's  day  any  persons  not  being  travellers,  strangers,  or 
lodgers,  or  suffers  such  persons  on  said  day  to  abide  or  remain 
therein,  or  in  the  yards,  orchards,  or  fields,  appertaining  to 
the  same,  drinking,  or  spending  their  time  idly  or  at  play,  or 
in  doing  any  secular  business,  shall  be  punished  by  fine  not 
exceeding  five  dollars  for  each  person  so  entertained  or  suffered 
so  to  abide  and  remain ;  and  upon  any  conviction  afler  the  first, 
by  fine  not  exceeding  ten  dollars ;  and  if  convicted  three  times, 
he  shall  thereafter  be  incapable  of  holding  a  license ;  and  every 
person  so  abiding  or  drinking  shall  be  punished  by  fine  not 
exceeding  five  dollars. 

Sect.  4.  Whoever  is  present  at  a  game,  sport,  play,  or 
public  diversion,  except  a  concert  of  sacred  music,  upon  the 
evening  of  the  Lord's  day,  or  upon  the  evening  next  preceding 
the  Lord's  day,  unless  such  game,  sport,  play,  or  public  diver- 
sion, is  licensed  by  the  persons  or  board  authorized  by  law 
to  grant  licenses  in  such  cases,  shall  be  punished  by  fine  not 
exceeding  five  dollars  for  each  offence. 

Sect.  5.  No  person  licensed  to  keep  a  place  of  public  en- 
tertainment shall  entertain  or  suffer  to  remain  or  be  in  his 
house,  yard,  or  other  places  appurtenant,  any  persons,  not 
being  travellers,  strangers,  or  lodgers,  in  such  house,  drinking 
and  spending  their  time  there,  on  the  Lord's  day,  or  the  evening 
23* 


270  APPENDIX. 

preceding  the  same ;  and  every  such  innholder  or  other  person 
so  offending  shall  be  punished  by  fine  not  exceeding  five  dollars 
for  each  offence. 

Sect.  6.  No  person  shall  serve  or  execute  any  civil  process 
on  the  Lord's  day;  but  such  service  shall  be  void,  and  the 
person  serving  or  executing  such  process  shall  be  liable  in 
damages  to  the  party  aggrieved  in  like  manner  as  if  he  had  no 
such  process. 

Sect.  7.  Whoever  on  the  Lord's  day,  within  the  -walls  of 
any  house  of  public  worship,  behaves  rudely  or  indecently, 
shall  be  punished  by  fine  not  exceeding  ten  dollars. 

Sect.  8.  All  sheriffs,  grand  jurors,  and  constables  shall 
inquire  into  and  inform  of  all  offences  against  the  preceding 
provisions  of  this  chapter,  and  cause  the  same  to  be  carried 
into  effect. 

Sect.  9.  Whoever  conscientiously  believes  that  the  seventh 
day  of  the  week  ought  to  be  observed  as  the  Sabbath,  and 
actually  refi-ains  from  secular  business,  travel,  and  labor,  on 
that  day,  shall  not  be  liable  to  the  penalties  of  this  chapter  for 
performing  secular  business,  travel,  or  labor,  on  the  Lord's  day, 
or  first  day  of  the  week:  provided^  that  he  disturbs  no  other 
person. 

Sect.  10.  Prosecutions  for  penalties  incurred  under  the  pre- 
ceding provisions  of  this  chapter  shall  be  instituted  within  six 
months  after  the  ofience  is  committed. 

Sect.  11.  Any  innholder,  common  victualler,  or  person, 
keeping,  or  suffering  to  be  kept,  in  any  place  occupied  by  him, 
implements  such  as  are  used  in  gaming,  in  order  that  the  same 
may  for  hire,  gain,  or  reward,  be  used  for  purposes  of  amuse- 
ment, who  on  the  Lord's  day,  uses  or  suffers  to  be  used,  any  imple- 
ments of  that  kind  upon  any  part  of  his  premises,  shall,  for  the 
first  offence,  forfeit  a  sum  not  exceeding  one  hundred  dollars, 
or  be  imprisoned  in  the  house  of  correction  not  exceeding  three 
months;  and  for  every  subsequent  offence  shall  be  imprisoned 
in  the  house  of  correction  for  a  term  not  exceeding  one  year; 
and  in  either  case  shall  further  recognize,  with  sufficient  sure- 
ties, in  a  reasonable  sum  for  his  good  behavior,  and  especially 
that  he  will  not  be  guilty  of  any  offence  against  the  provisions 


APPENDIX.  271 

of  this  section,  for  the  space  of  three  months  then  next  ensu- 
ing. 

Sect.  12.  The  Lord's  day  shall  include  the  time  from  mid- 
night to  midnight. 

General  Statutes  1865,  Chapter  253. 
For  the  Better  Observance  of  the  Lord's  Day. 

Section  1.  Any  person  who  shall  discharge  any  fire-arms 
for  sport,  or  in  the  pursuit  of  game,  on  the  Lord's  day,  shall, 
upon  conviction  thereof,  be  punished  by  a  fine  not  exceeding 
ten  dollars. 

Sect.  2.  Whoever  attempts  to  take  or  catch  any  fish  on 
the  Lord's  day,  by  using  any  hook,  line,  net,  spear,  or  other 
implement,  on  any  of  the  waters  within  this  Commonwealth, 
shall,  upon  conviction  thereof,  be  punished  by  a  fine  not  ex- 
ceeding ten  dollars. 

Sect.  3.  All  prosecutions  under  this  act  shall  be  instituted 
within  thirty  days  from  the  time  the  ofience  is  committed. 
May  16,  1865. 

F. 

General  Statutes  1860,  Chapter  106. 

Of  Marriage. 

Section  1.  No  man  shall  marry  his  mother,  grandmother, 
daughter,  granddaughter,  step-mother,  sister,  grandfather's  wife, 
son's  wife,  grandson's  wife,  wife's  mother,  wife's  grandmother,  wife's 
daughter,  wife's  granddaughter,  brother's  daughter,  sister's  daugh- 
ter, father's  sister,  or  mother's  sister. 

Sect.  2.  No  woman  shall  marry  her  father,  grandfather,  son, 
grandson,  step-father,  brother,  grandmother's  husband,  daughter's 
husband,  granddaughter's  husband,  husband's  father,  husband's 
grandfather,  husband's  son,  husband's  grandson,  brother's  son, 
sister's  son,  father's  brother,  or  mother's  brother. 

Sect.  3.  In  all  cases  mentioned  in  the  two  preceding  sections 
in  which  the  relationship  is  founded  on  marriage,  the  prohibition 
shall  continue  notwithstanding  the  dissolution  of  such  marriage, 
by  death  or  divorce,  unless  the  divorce  is  for  a  cause  which  shows 
the  marriage  to  have  been  originally  unlawful  and  void. 


2t2  APPENDIX. 

Sect.  4.  All  marriages  contracted  while  either  of  the  parties 
has  a  former  wife  or  husband  living,  except  as  is  provided  in  chap- 
ter one  hundred  and  seven,  shall  be  void. 

Sect.  5.  No  insane  person  or  idiot  shall  be  capable  of  con- 
tracting marriage. 

Sect.  6.  When  persons  resident  in  this  state,  in  order  to  evade 
the  preceding  provisions,  and  with  an  intention  of  returning  to 
reside  in  this  state,  go  into  another  state  or  country,  and  there 
have  their  marriage  solemnized,  and  afterwards  return  and  reside 
here,  the  marriage  shall  be  deemed  void  in  this  state. 

Sect.  7.  Persons  intending  to  be  joined  in  marriage  shall  be- 
fore their  marriage  cause  notice  thereof  to  be  entered  in  the 
office  of  the  clerk  or  registrar  of  the  city  or  town  in  which  they 
respectively  dwell,  if  within  the  state.  If  there  is  no  such  clerk  or 
registrar  in  the  place  of  their  residence,  the  entry  shall  be  made 
in  an  adjoining  city  or  town. 

Sect.  8.  The  clerk  or  registrar  shall  deliver  to  the  parties  a 
certificate  under  his  hand,  specifying  the  time  when  notice  of  the 
intention  of  marriage  was  entered  with  him,  together  with  all  facts 
in  relation  to  the  marriage  required  by  law  to  be  ascertained  and 
recorded,  except  those  respecting  the  person  by  whom  the  mar- 
riage is  to  be  solemnized.  Such  certificate  shall  be  delivered  to 
the  minister  or  magistrate  in  whose  presence  the  marriage  is  to  be 
contracted,  before  he  proceeds  to  solemnize  the  same. 

Sect.  9.  If  a  clerk  or  registrar  issues  such  certificate  to  a 
male  under  the  age  of  twenty-one  years,  or  a  female  under  the 
ao-e  of  eighteen  years,  having  reasonable  cause  to  suppose  the  per- 
son to  be  under  such  age,  except  upon  the  application  or  consent 
in  writing  of  the  parent,  master,  or  guardian,  of  such  person,  he 
shall  forfeit  a  sum  not  exceeding  one  hundred  dollars  ;  but  if  there 
is  no  parent,  master,  or  guardian  in  this  state  competent  to  act,  a 
certificate  may  be  issued  without  such  application  or  consent. 

Sect.  10.  The  clerk  or  registrar  may  require  of  any  person 
applying  for  such  certificate,  an  affidavit  sworn  to  before  a  justice 
of  the  peace  for  the  county  where  the  application  is  made,  setting 
forth  the  age  of  the  parties ;  which  affidavit  shall  be  sufHcient 
proof  of  age  to  authorize  the  issuing  of  the  certificate. 

Sect.  1 1 .     Whoever  applying  for  such  certificate  wilfully  makes 


APPENDIX.  273 

a  false  statement  in  relation  to  the  age  or  residence,  parent,  mas- 
ter, or  guardian,  of  either  of  the  parties  intending  marriage,  shall 
forfeit  a  sum  not  exceeding  two  hundred  dollars. 

Sect.  12.  When  a  marriage  is  solemnized  in  another  state, 
between  parties  living  in  this  state,  and  they  return  to  dwell  here, 
they  shall,  within  seven  days  after  their  return,  file  with  the  clerk 
or  registrar  of  the  city  or  town  where  either  of  them  lived  at  the 
time,  a  certificate  or  declaration  of  their  marriage,  including  the 
facts  concerning  marriages  required  by  law,  and  for  every  neglect 
they  shall  forfeit  ten  dollars. 

Sect.  13.  No  magistrate  or  minister  shall  solemnize  a  mar- 
riage, having  reasonable  cause  to  suppose  either  of  the  parties  to 
be  under  the  age  mentioned  in  section  nine,  without  the  consent 
of  the  parent  or  guardian  having  the  custody  of  the  minor,  if 
there  is  any  in  the  state  competent  to  act. 

Sect.  14.  Marriages  may  be  solemnized  by  a  justice  of  the 
peace  in  the  county  for  which  he  is  appointed,  when  either  of  the 
parties  resides  in  the  same  county ;  and  throughout  the  State  by 
any  minister  of  the  gospel  ordained  according  to  the  usage  of  his 
denomination,  who  resides  within  the  State,  and  continues  to  per- 
form the  functions  of  his  office ;  but  all  marriages  shall  be  sol- 
emnized in  the  city  or  town  in  which  the  person  solemnizing  them 
resides,  or  in  which  one  or  both  the  persons  to  be  married  reside. 

Sect.  15.  Marriages  among  the  people  called  Friends,  or 
Quakers,  may  be  solemnized  in  the  manner  heretofore  used  and 
practised  in  their  societies. 

Sect.  16.  Every  justice  of  the  peace,  minister,  and  clerk,  or 
keeper  of  the  records  of  the  meeting  wherein  any  marriages 
among  the  Friends,  or  Quakers,  are  solemnized,  shall  make  a 
record  of  each  marriage  solemnized  before  him,  together  with  all 
facts  relating  to  the  marriage  required  by  law  to  be  recorded.  He 
shall  also,  between  the  first  and  tenth  days  of  each  month,  return 
a  copy  of  the  record  for  the  month  next  preceding,  to  the  clerk 
or  registrar  of  the  city  or  town  in  which  the  marriage  was  sol- 
emnized, and  shall,  when  neither  of  the  parties  to  a  marriage 
resides  in  the  city  or  town  in  which  the  marriage  is  solemnized, 
return  a  copy  of  the  record  of  such  marriage  to  the  clerk  or  regis- 
trar of  the  city  or  town  in  which  one  or  both  of  said  parties  reside. 


274  APPENDIX. 

All  marriages  so  returned  shall  be  recorded  by  the  clerk  or  reg- 
istrar. 

Sect.  17.  Every  person  neglecting  to  make  the  returns  re- 
quired by  the  preceding  section  shall  forfeit  for  each  neglect  not 
less  than  twenty  nor  more  than  one  hundred  dollars. 

Sect.  18.  A  justice  of  the  peace,  or  minister,  who  joins  per- 
sons in  marriage  contrary  to  the  provisions  of  this  chapter,  know- 
ing that  the  marriage  is  not  duly  authorized,  shall  forfeit  not  less 
than  fifty  nor  more  than  one  hundred  dollars. 

Sect.  1 9.  Whoever  undertakes  to  join  persons  in  marriage, 
knowing  that  he  is  not  authorized  so  to  do,  shall  be  imprisoned  in 
the  jail,  or  confined  to  hard  labor,  for  a  term  not  exceeding  six 
months,  or  pay  a  fine  of  not  less  than  fifty  nor  more  than  two 
hundred  dollars. 

Sect.  20.  No  marriage  solemnized  before  a  person  professing 
to  be  a  justice  of  the  peace,  or  minister  of  the  gospel,  shall  be 
deemed  or  adjudged  to  be  void,  nor  shall  the  validity  thereof  be 
in  any  way  affected,  by  want  of  jurisdiction  or  authority  in  such 
person,  or  by  an  omission  or  informality  in  the  manner  of  entering 
the  intention  of  marriage,  if  the  marriage  is  in  other  respects  law- 
ful, and  is  consummated  with  a  full  belief  on  the  part  of  the  per- 
sons so  married,  or  either  of  them,  that  they  have  been  lawfully 
joined  in  marriage. 

Sect.  21.  The  record  of  a  marriage,  made  and  kept  as  pre- 
scribed by  law  by  the  person  before  whom  the  marriage  is  sol- 
emnized, or  by  the  clerk  or  registrar  of  any  city  or  town,  or  a 
copy  of  such  record  duly  certified,  shall  be  received  in  all  courts 
and  places  as  presumptive  evidence  of  such  marriage. 

Sect.  22.  When  the  fact  of  marriage  is  required  or  offered  to 
be  proved  before  any  court,  evidence  of  the  admission  of  such  fact 
by  the  party  against  whom  the  process  is  instituted,  or  of  general 
repute,  or  of  cohabitation  as  married  persons,  or  any  other  circum- 
stantial or  presumptive  evidence  from  which  the  fact  may  be  in- 
ferred, shall  be  competent. 

Sect,  23.  Marriages  solemnized  in  a  foreign  country  by  a  con- 
sul or  diplomatic  agent  of  the  United  States  shall  be  valid  in  this 
state  ;  and  a  copy  of  the  record,  or  a  certificate  from  such  consul 
or  agent,  shall  be  presumptive  evidence  of  such  marriage. 


APPENDIX.  216 

G. 

The  following  Preamble^  Constitution^  and  Resolutions  were  adopted 
by   the   Convention  of  Unitarians   held   at   New  York,  April, 

1865:  — 

Whereas,  The  great  opportunities  and  demands  for  Christian 
labor  and  consecration  at  this  time  increase  our  sense  of  the  obh- 
gations  of  all  disciples  of  the  Lord  Jesus  Christ  to  prove  their 
faith  by  self-denial,  and  by  the  devotion  of  their  hves  and  posses- 
sions to  the  service  of  God  and  the  building  up  of  the  kingdom 
of  his  Son:  — 


Art.  1.  Therefore,  the  Christian  churches  of  the  Unitarian 
faith  here  assembled  unite  themselves  in  a  common  body,  to  be 
known  as  the  National  Conference  of  Unitarian  Churches,  to  the 
end  of  reorganizing  and  stimulating  the  denomination  with  which 
they  are  connected  to  the  largest  exertions  in  the  cause  of  Chris- 
tian faith  and  work. 

Art.  2.  This  National  Conference  shall  be  composed  of  such 
delegates,  elected  annually,  not  to  exceed  three  from  any  church, 
including  its  minister,  who  shall  officially  be  one,  as  any  of  our 
churches  may  accredit  to  it  by  a  certificate  of  their  appointment. 

Art.  3.  The  American  Unitarian  Association,  the  Western 
Conference,  and  such  other  theological,  academic,  or  humane  or- 
ganizations in  our  body  as  the  conference  may  see  fit  to  invite, 
shall  be  entitled  to  representation  by  no  more  than  three  dele- 
gates each. 

Art.  4.  The  conference  shall  meet  annually,  at  such  time  as 
it  may  designate  at  its  successive  annual  sessions. 

Art.  5.  The  officers  shall  consist  of  a  president;  six  vice- 
presidents  ;  three  secretaries, —  an  honorary,  a  recording,  and  cor- 
responding secretary ;  and  a  council  of  ten,  —  half  ministers  and 


276  APPENDIX. 

half  laymen,  —  who  shall  be  elected  at  each  meeting,  to  hold  their 
office  for  one  year,  and  until  their  successors  are  appointed. 

Art.  6.  The  council  of  ten  shall  have  charge,  during  the  in- 
tervals of  the  annual  sessions,  of  all  business  having  reference 
to  the  interests  of  the  conference,  and  entrusted  it  by  that  body, 
which  is  hereby  declared  a  purely  advisory  one. 

Art.  7.  The  National  Conference,  until  further  advised  by 
its  experience,  adopts  the  existing  organizations  of  the  Unitarian 
body  as  the  instruments  of  its  power,  and  confines  itself  to  the 
recommending  to  them  such  undertakings  and  methods  as  it 
judges  to  be  in  the  heart  of  the  Unitarian  denomination. 

Art.  8.  The  foregoing  constitution  may  be  amended  at  any 
regular  meeting  of  the  conference  by  a  vote  of  not  less  than  two- 
thirds  of  the  delegates  acredited  thereto. 

The  following  Resolutions  were  also  adopted  by  the  convention ; 

Resolved^  That  we  deem  it  necessary  to  the  spread  and  tri- 
umph ot  the  Kingdom  of  God  in  our  country  and  the  world, 
that  there  should  be  recognition  of  fellowship  and  cooperation 
between  all  those  various  elements  in  our  population  which  are 
prepared  to  meet  on  the  broad  basis  of  Christianity,  and  that  we 
are  prepared  to  offer  and  welcome  such  a  cooperation. 

Resolved^  That  the  National  Unitarian  Convention  recommend 
to  the  churches  of  our  common  faith,  not  yet  having  contributed 
to  that  fund,  to  unite  in  completing,  at  the  earhest  moment, 
the  sum  of  S  100,000  asked  for  at  the  late  special  meeting 
of  the  American  Unitarian  Association,  and  now  in  process  of  col- 
lection. 

Resolved^  That  this  Convention  recommend  that  a  similar 
sum  of  $  100,000  be  raised  among  our  churches  annually  for 
the  purposes  of  the  denomination.  ^^ 

Resolved,  That  it  be  urgently  recommended  to  our  people 
to  unite  in  raising,  before  the  first  day  of  June  next,  the  sum  of 
$  100,000  for  the  endowment  of  Antioch  College. 


APPENDIX.  2*1*1 

Resolved^  That  we  earnestly  recommend  to  the  men  of  wealth 
in  our  denomination  the  urgent  claims  of  our  two  theological 
seminaries  to  ampler  endowments. 

Resolved,  That  the  Council  bring  before  the  churches,  at  the 
first  moment  expedient,  the  necessity  and  duty  of  creating  an 
organ  for  the  denomination,  to  be  called  the  Liberal  Christian^ 
upon  some  plan  to  be  deliberately  matured  by  them. 

Resolved,  That  we  recommend  a  generous  support  of  West- 
ern missions  through  the  Western  Conference. 

Resolved,  That  this  convention  give  solemn  thanks  to  Almighty 
God  for  the  success  with  which  he  has  crowned  the  arms  of 
the  United  States  in  the  war  for  the  suppression  of  a  most 
wicked  rebellion,  for  the  near  prospect  of  peace,  and  for  the 
opening  which  is  made,  by  the  extinction  of  slavery,  for  the  diffu- 
sion of  Christianity  in  its  true  spirit,  as  a  religion  of  love,  mercy, 
and  universal  liberty. 

Resolved,  That  the  several  delegations,  as  soon  as  conven- 
iently may  be,  shall  communicate  to  their  constituents  the  doings 
of  the  convention,  and  obtain  their  ratification  thereof,  and 
transmit  the  same,  attested  by  the  signatures  of  the  respective 
delegations,  to  the  corresponding  secretary  of  the  conference. 

H. 

The  following  Declaration  of  Faith  was  adopted  by  the  Congrega- 
tional Convention  assembled  at  Boston,  in  June,  1865  :  — 

Standing  by  the  Rock  where  the  Pilgrims  set  foot  upon  these 
shores,  upon  the  spot  where  they  worshipped  God,  and  among  the 
graves  of  the  early  generations,  we,  elders  and  messengers  of  the 
Congregational  churches  of  the  United  States  in  National  Council 
assembled,  —  like  them  acknowledging  no  rule  of  faith  but  the 
word  of  God,  —  do  now  declare  our  adherence  to  the  faith  and 
order  of  the  apostolic  and  primitive  churches,  held  by  our 
fathers,  s^  substantially  as  embodied  in  the  confessions  and 
platforms  which  our  synods  of  1648  and  1680  set  forth  or  re- 
affirmed. We  declare  that  the  experience  of  the  nearly  two  and 
a  half  centuries  which  have  elapsed  since  the  memorable  day 
24 


21 S  APPENDIX. 

when  our  sires  founded  here  a  Christian  Commonwealth,  with 
all  the  development  of  new  forms  of  error  since  their  times, 
has  only  deepened  our  confidence  in  the  faith  and  polity  of 
those  fathers.  We  bless  God  for  the  inheritance  of  these  doc- 
trines. We  invoke  the  help  of  the  Divine  Redeemer,  that, 
through  the  presence  of  the  promised  Comforter,  he  will  enable 
us  to  transmit  them  in  purity  to  our  children. 

In  the  times  that  are  before  us  as  a  nation,  times  at  once 
of  duty  and  of  danger,  we  rest  all  our  hope  in  the  gospel  of 
the  Son  of  God.  It  was  the  grand  peculiarity  of  our  Puritan 
fathers,  that  they  held  this  gospel,  not  merely  as  the  ground 
of  their  personal  salvation,  but  as  declaring  the  worth  of  man 
by  the  incarnation  and  sacrifice  of  the  Son  of  God ;  and  there- 
fore applied  its  principles  to  elevate  society,  to  regulate  educa- 
tion, to  civilize  humanity,  to  purify  law,  to  reform  the  church 
and  the  state,  to  assert  and  defend  liberty;  in  short,  to  mould 
and  redeem,  by  its  all-transforming  energy,  everything  that  be- 
longs to  man  in  his  individual  and  social  relations. 

It  was  the  faith  of  our  fathers  that  gave  us  this  free  land  in 
which  we  dwell.  It  is  by  this  faith  only  that  we  can  transmit 
to  our  children  a  free  and  happy,  because  a  Christian  Com- 
monwealth. 

We  hold  it  to  be  a  distinctive  excellence  of  our  Congrega- 
tional system,  that  it  exalts  that  which  is  more,  above  that 
which  is  less  important,  and,  by  the  simplicity  of  its  organiza- 
tion, facilitates,  in  communities  where  the  population  is  limited, 
the  union  of  all  true  believers  in  one  Christian  church ;  and 
that  the  division  of  such  communities  into  several  weak  and 
jealous  societies,  holding  the  same  common  faith,  is  a  sin  against 
the  unity  of  the  body  of  Christ,  and  at  once  the  shame  and 
scandal  of  Christendom. 

We  rejoice  that,  through  the  influence  of  our  free  system  of 
apostolic  order,  we  can  hold  fellowship  with  all  who  acknowl- 
edge Christ,  and  act  efficiently  in  the  work  of  restoring  unity 
to  the  divided  church,  and  of  bringing  back  hJfhnony  and 
peace  among  all  "who  love  our  Lord  Jesus  Christ  in  sincerity." 

Thus  recognizing  the  unity  of  the  church  of  Christ  in  all 
the  world,  and  knowing  that  we  arc  but  one  branch  of  Christ's 


APPENDIX.  2T9 

people,  while  adhering  to  our  peculiar  faith  and  order,  we  ex-^ 
tend  to  all  believers  the  hand  of  Christian  fellowship  upon  the 
basis  of  those  great  fundamental  truths  in  which  all  Christians 
should  agree.  With  them  we  confess  our  faith  in  God,  the 
Father,  the  Son,  and  the  Holy  Ghost,  the  only  living  and  true 
God ;  in  Jesus  Christ,  the  incarnate  Word,  who  is  exalted  to  be 
our  Redeemer  and  King;  and  in  the  Holy  Comforter,  who  is 
present  in  the  church  to  regenerate  and  sanctify  the  soul. 

With  the  whole  church,  we  confess  the  common  sinfulness 
and  ruin  of  our  race,  and  acknowledge  that  it  is  only  through 
the  work  accomplished  by  the  hfe  and  expiatory  death  of 
Christ,  that  believers  in  him  are  justified  before  God,  receive 
the  remission  of  sins,  and  through  the  presence  and  grace  of 
the  Holy  Comforter  are  delivered  from  the  power  of  sin  and 
perfected  in  holiness. 

We  believe  also  in  the  organized  and  visible  church,  in  the 
ministry  of  the  Word,  in  the  sacraments  of  Baptism  and  the 
Lord's  Supper,  in  the  resurrection  of  the  body,  and  in  the  final 
judgment,  the  issues  of  which  are  eternal  life  and  everlasting 
punishment. 

We  receive  these  truths  on  the  testimony  of  God,  given 
through  prophets  and  apostles,  and  in  the  life,  the  miracles, 
the  death,  the  resurrection,  of  his  Son,  our  Divine  Redeemer,  — 
a  testimony  preserved  for  the  church  in  the  Scriptures  of  the 
Old  and  New  Testaments,  which  were  composed  by  holy  men 
as  they  were  moved  by  the  Holy  Ghost. 

Affirming  now  our  belief  that  those  who  thus  hold  "  one  faith, 
one  Lord,  one  baptism,"  together  constitute  the  one  catholic 
church,  the  several  households  of  which,  though  called  by  dif- 
ferent names,  are  the  one  body  of  Christ ;  and  that  these  mem- 
bers of  his  body  are  sacredly  bound  to  keep  "  the  unity  of  the 
spirit  in  the  bond  of  peace,"  we  declare  that  we  will  co- 
operate with  all  who  hold  these  truths.  With  these  we  will 
carry  the  gospel  into  every  part  of  this  land,  and  with  them 
we  will  go  into  aU  the  world,  and  "  preach  the  gospel  to  every 
creature."  May  He  to  whom  '*  all  power  is  given  in  heaven 
and  earth "  fulfil  the  promise  which  is  all  our  hope  :  "  Lo,  I 
am  with  you  alway,  even  to  the  end  of  the  world."     Amen. 


280  APPENDIX. 

Resolutions  of  the  Convention  on  the  state  of  the  country, 
preaching  the  gospel  at  home  and  in  foreign  lands,  education, 
church-building,  and  many  other  religious  and  benevolent  topics 
may  be  found  in  the  Congregational  Quarterly  for  July  and 
October,  1865. 

I. 

Address,  Creed,  and  Covenant  of  the  Church  in  Andover  The- 
ological  Seminary. 

You  now  appear,  in  the  presence  of  Christ  and  of  His  people, 
to  make  profession  of  your  Christian  faith. 

We  trust  that  you  have  well  considered  the  nature  of  this  trans- 
action ;  and  that  you  perform  it  with  a  deep  sense  of  your  own 
weakness,  and  your  unworthiness  to  utter  these  vows  unto  the 
living  God. 

Yet,  you  stand  here  at  Christ's  bidding.  In  His  strength  you  do 
this  thing.  AVe  thank  God,  upon  every  remembrance  of  you ; 
being  confident  that  He,  which  hath  begun  a  good  work  in  you, 
will  perform  it  unto  the  day  of  Jesus  Christ. 

You  will  now  listen  to  the  Creed  adopted  by  this  Church. 

We  believe  in  the  existence  of  One  only  living  and  personal 
God,  —  the  Creator,  Preserver,  and  Supreme  Kuler  of  the  uni- 
verse, —  who  worketh  all  things  according  to  the  counsel  of  His 
own  wiU,  and  whose  government  is  holy,  just,  and  good. 

We  believe  that  the  Scriptures  of  the  Old  and  New  Testa- 
ments were  given  by  inspiration  of  God  ;  and  that  they  are  the 
only  authoritative  record  of  the  Divine  W^ill. 

We  believe  that  God  is  revealed  in  the  Scriptures,  as  the  Fa- 
ther, the  Son,  and  the  Holy  Ghost ;  these  three  being  in  all  Divine 
attributes  equal. 

We  beheve  that  man  has  fallen  from  the  state  of  innocence  in 
which  he  was  created ;  and  that  consequently  all  mankind  are 
destitute  of  holiness,  until  renewed  by  the  Holy  Sj)irit. 

We  believe  that  God  so  loved  the  world,  that  he  gave  His  Only 
Begotten  Son  to  die  for  its  redemption ;  that  our  Lord  Jesus  Christ 
took  upon  himself  our  nature,  and  by  His  obedience,  sufferings, 
and  death,  made  an  atonement  sufficient  lor  the  salvation  of  all 


APPENDIX.  281 

men ;  and  that  forgiveness  of  sin,  and  eternal  life,  are  therefore 
freely  offered  to  all  who  repent  of  sin,  with  faith  in  Christ. 

We  believe  that,  in  the  same  love  in  which  God  gave  His  Son 
to  die,  he  has  also  sent  the  Holy  Spirit  to  make  His  truth  effectual ; 
that,  through  His  gracious  influences  alone,  men  are  convinced  of 
sin,  renewed,  and  sanctified ;  and  that  those  who  are  thus  led  to 
repentance,  having  been  chosen  in  Christ,  before  the  foundation 
of  the  world,  will  be  kept  by  the  power  of  God,  through  faith, 
unto  salvation. 

We  believe  that  for  the  comfort  and  strengthening  of  His  fol- 
lowers, and  for  testimony  to  His  truth,  our  Lord  has  established  in 
the  world  a  visible  church  ;  that  it  is  the  duty  of  all  Christians  to 
enter  into  covenant  with  it,  professing  thus  their  faith  in  Christ,  and 
observing  the  Ordinances  of  Baptism  and  the  Lord's  Supper  ;  that 
it  is  the  privilege  of  believing  parents  to  consecrate  their  children 
also  to  God  in  Baptism ;  and  that  all  believers,  visibly  united, 
though  called  by  different  names,  are  the  one  body  of  Christ,  sacred- 
ly bound  to  keep  the  unity  of  the  spirit  in  the  bond  of  peace. 

We  believe  that  there  will  be  a  resurrection  of  the  dead, 
both  of  the  just  and  of  the  unjust ;  that  all  must  give  account  to 
Christ  of  the  deeds  done  in  the  body ;  and  that  the  wicked  will 
go  away  into  everlasting  punishment,  and  the  righteous  into  life 
eternal. 

While  we  declare,  in  this  form,  the  faith  which  we  believe  to 
have  been  once  delivered  to  the  saints,  we  do  not  restrict  the 
freedom  of  our  brethren  in  the  interpretation  of  God's  word. 

We  reserve  to  ourselves  the  right  to  accept,  from  those  who 
may  hereafter  join  us,  other  evangelical  forms  of  faith  whenever 
they  shall  seem  to  us  necessary  to  the  liberty  of  the  gospel. 

Do  you  accept  this  as  the  declaration  of  your  faith  ? 

COVENANT. 

You  do  now  solemnly  acknowledge  the  Father,  the  Son,  and 
the  Holy  Ghost,  to  be  your  God  forever.  You  avow  that  you 
love  Him  supremely.  You  cheerfully  dedicate  yourselves  to  His 
service.  You  gratefully  enter  into  covenant  with  Him,  as  your 
most  constant  and  faithful  Friend.  In  humble  reliance  upon  His 
24* 


282  APPENDIX. 

aid,  you  avow  your  purpose  to  seek  habitual  communion  Avith 
Him  in  prayer ;  to  give  dilligent  attention  to  His  Word  and  Ordi- 
nances ;  to  prize,  above  all  things  else,  the  honor  of  His  kingdom ; 
and  to  adorn  the  doctrine  of  God,  our  Saviour,  by  a  blameless  life. 

Striving  thus  to  be  perfect,  as  He  is  perfect,  you  humbly  trust 
in  the  atoning  blood  of  Christ  for  the  pardon  of  your  sins  ;  you 
depend  upon  the  infinite  Grace  of  the  Holy  Spirit  for  your  sancti- 
fication  ;  committing  your  souls  to  him  that  is  able  to  keep  you 
from  falling,  and  to  present  you  faultless  before  the  presence  of 
his  glory,  with  exceeding  joy. 

You  also  enter  into  fraternal  covenant  with  this  Church  ;  that 
you  will  study  its  peace,  its  purity,  and  its  liberty ;  that  you  will 
love  and  watch  over  its  members  as  brethren ;  and  that  you  will  so 
order  your  life  as  to  do  honor  to  its  faith  and  ordinances  by  your 
example. 

Do  you  thus  covenant  with  God  and  his  people  ? 

We,  then,  the  members  of  this  Church,  now  enter  into  solemn 
covenant  with  you.  We  affectionately  welcome  you  to  fellowship 
with  us,  in  our  communion  with  our  Lord.  In  His  name,  we  de- 
clare you  entitled  to  all  the  privileges  of  His  church.  AVe  promise 
to  watch  over  you,  so  long  as  you  continue  with  us,  and  faithfully 
to  seek  your  growth  in  His  likeness,  and  conformity  to  His  example. 

And  now,  beloved  in  the  Lord,  let  it  be  impressed  upon  your 
minds  that  you  have  entered  into  obligations  the  most  sacred  of 
your  life.  You  are  compassed  about  with  a  great  cloud  of  wit- 
nesses. These  vows  will  follow  you  to  the  bar  of  God.  You  will 
give  account  of  them  to  Christ,  at  His  coming.  May  the  God  of 
all  grace  strengthen  and  keep  you  !  The  very  God  of  peace 
sanctify  you  wholly !  Faithful  is  He  that  calleth  you.  He  speaks 
to  you  to-day,  saying,  "  Let  not  your  heart  be  troubled,  neither 
let  it  be  afraid.  Not  as  the  world  giveth,  give  I  unto  you.  As 
the  Father  hath  loved  me,  so  have  I  loved  you.  The  Father  him- 
self loveth  you,  because  ye  have  loved  me.  These  things  have  I 
spoken  unto  you,  tha<-  in  me  ye  might  have  peace.  Be  of  good 
cheer ;  I  have  overcome  the  world."     Amen  ! 


INDEX. 


A. 


ACADEMIES  AND  SCHOOLS, 

Abbot  Female  Academy,  Andover, 

Hopkins,  Hadley,         ....          161, 

Phillips,  Andover,  .... 

Putnam,  Newburyport,  .... 

Roxbury,  Free  School,       ..... 

excluding  all  books  but  the  Bible  and  spelling-book,  good, 

excluding  certain  persons  by  name,  not  charities,  . 

for  colored  persons,  in  Massachusetts  and  Connecticut, 
ANDOVER  WEST  PARISH,  .... 

South  Parish,   ..... 

Ministerial  Fund,    .  .  . 

Incorporated  Religious  Societies, 

Theological  Seminary,      .... 
ANTINOMIAN  CONTROVERSY, 
APPEAL, 

effect  on  salary,  .... 

in  English  courts,  ..... 

cases  in  Massachusetts,  ... 

in  other  denominations,      .... 

protection  of  appellants, 
ARTICLES  OF  CHURCH  OF  ENGLAND, 

how  construed  by  courts, 

ARMINIUS, 

ARTILLERY-ELECTION   SERMONS, 
ATHEISTS, 

their  testimony  in  court, 

(283) 


Page. 
150, 161 
.  177 
171,  176 
173, 176 
169 


161 

166 

166 

177 

19 

22 

112 

124 

178 

74,90 


92 

.   178 

211 

.   213 

240,  245 


80 
107 


201,  203 
201.  203 


284 


INDEX. 


B. 

BACKUS,  ISAAC,  OF  MIDDLEBORO',           .            .       38,  48 
BAPTISTS, 38 

views  of  Helwys,  colleague  of  John  Robinsoa  in  Holland,       38 


baptism  and  early  councils, 

74,  208 

Baptists  and  tax-laws, 

36,  38,  43,  185 

usage  as  to  electing  minister. 

49,65 

and  Unitarians, 

. 

54 

divisions  occasioned  by  slavery, 

67,94 

controversial  topics. 

. 

105 

BANISHMENT, 

35,69 

BARNES'  CASE,     . 

100, 

229,  239 

BATCHELDER'S  CASE, 

.       201 

BEECHER'S  CASE, 

100, 

229,  239 

BUSHNELL'S  CASE,    . 

229,  239 

BELLS,  ownership  and  control, 

, 

139 

BILL  OF  RIGHTS,  1780, 

56,  59,  89 

convention  to  amend,  1820, 

. 

47,  123 

amended,  1834, 

, 

64 

construed. 

46, 

52,  89, 

179,  202 

BLASPHEMY,     .... 

. 

.     198 

BOSTON.     See  Charities  — Churches 

—  Federal  Street 

Meeting  House  —  Ministers — Old  South 

[  —  Pews. 

BRATTLE-STREET  PARSONAGE, 

. 

. 

.      172 

BRAWLING, 

142 

BURIAL   GROUNDS, 

taxes  to  support. 

158 

purchase  and  care  of  a  charity. 

.       163 

circumspecte  agitis. 

158,  159 

owner  of,  may  not  cut  the  trees,    . 

. 

.       159 

control  of  tombs. 

160 

Pepperell,    .... 

• 

.      155 

Andover, 

159 

sanitary  regulations. 

. 

.      158 

BY-LAWS   OF   CHURCH, 

223 

of  religious  society. 

. 

131,132 

CALVIN, .      107,  195 

CHARITIES, 

jurisdiction  of  general  court  and  supremo  judicial,  .       161 

what  are  they,  .  162 


INDEX. 


CHARITIES  —continued. 

St.  43  Elizabeth  adopted,  Ch.  4.    .  .  .  .       162 

religious  societies  are  not  public  charities,        .  .  133 

churches  are  not  public  charities,  ,  .  .  133,  169 

who  may  be  trustees,    .  .  .  .  .  162 

who  may  be  donees  —  married  women,     .  .  .      163 

monthly  meeting  of  Quakers,  .  .  .  165 

cardinal  objects  of,  .  .  .  .  .173 

belief  of  donor  and  donee,       .  .  .  .  173 

Hollis  professor,     .  .  .  .  .  .174 

bills  and  suits  concerning,         ....     164-175 

statutes  of  limitation,  applicable  when,      .  .  126,  172 

subscriptions  to,  .  .  .  .  .175 

accumulations  limited,       .....       182 

visitors,  .  .  .  .  .  .  .  177 

their  acts  and  compromises,  .  .  .  177-181 

appeals  from  visitors  to  supreme  judicial  court,  Andover,       1 78 
appeal  to  visitors  —  its  effect  on  a  professor's  salary,        .         92 
transfer  of  control,  when  allowed  by  court,     .  .  168 

legislative  control  of,  .  .  .  .  .181 

voluntary  and  ecclesiastical  control,     .  .  .  183 

Presbyterian  General  Assembly's  claim  to  control,  180,  183 

Methodist  Conference  claim,  .  .  .  .180 

its  specific  appropriation  of  funds,  .  176 

English  charities,  .  .  .  .  .  .183 

Roman  Catholic,  .  .  .  .  .     167,  181 

Hopkins'  charitable  fund,  .  .  .  .  .163 

Lowell  Lectures,  Boston,  ....    135,  163 

Oliver  Smith  fund,  .  .  .  .  .163 

forfeiture  of  grants  and  bequests,         .  .         165,  170,  172 

cy  pres,       .......       167 

mortmain,  .      ■       .  .  .  .  .    167,  182 

CHRISTIANITY  PART  OF  THE  COMMON  LAW,        98,  203 

CHRISTIANS,  HARMONIZING  THEM,     .  103,   108,  278 

CHURCHES, 

defined,       .......         67 

not  incorporated,  .  .  *  .  .  55 

not  incorporated  with  deacons,      ....       117 

The  church  defined,       .....  68 

male  members  manage  secular  affairs,       .  .  68,  213 

minister  formerly  elected  by  church  alone,      .  .  48 


286 


INDEX. 


55 

58,62 

62,  68 

70 

71 


47 


CHURCHES,  —  continued. 

exiled  from  meeting-house, 

separated  from  a  territorial  parish, 

for  their  property  not  answerable  to  parish, 

protected  in  disciplining  members, 

parties  and  witnesses  protected, 

creeds,  covenants,  catechisms,  73,  79,  80,  82,  107,  206,  281 

half-way  covenant,  1662,    ...  74,  80,  83,  208 

members  suspended  or  excommunicated,  their  rights,  81,  82,  221 

dissolution  of  a  church,  .  .  .  .134,174 

church  manuals,     .  .  .  .  .  .181 

church  by-laws,  .... 
CHURCH  LANDS,  —  Vermont,  —  Canada, 
COLLEGES,— 

Harvard,  tests,  legislative  control, 

Amherst,  religious  tests  not  required, 

Columbia,  eligible  professors,  . 

Holy  Cross,  tests, 

Tufts,  tests,      .... 

Yale,  tests, 

Williams,  tests, 

Bowdoin,  visatorial  board, 

Bowdoin,  officers,  good  behavior,  trial, 

legislative  interference, 

Union,  visitorial  power, 
CONGREGATIONALISM,  — 

its  compromises, 

its  principles,  .  .  . 

its  power  to  preserve  the  faith, 

to  recover  lapsed  churches, 

from  1800  to  1843, 

its  contributions  to  other  denominations, 
CONFEDERATE  COMM'RS  N.  ENGLAND,  1643- 
their  supervision  of  ministers,  worship,  missions, 

of  public  laws,  boundaries,  annexation, 

custom  of  reading  their  articles, 
CONNECTICUT,  — 

annexation  of  New  Haven  Colony, 
Episcopalians  in,  .  .  .  •  •  ^^ 

parish  law  of,  ....  •  46,  58 

General  Court,  .  .  .  -65,  76,  168,  203 


•. 

223 

155 

7,  117, 

168, 

179 
175 

, 

176 

. 

176 

. 

176 

176, 

179 

, 

176, 

179 

171, 

177 

178, 

179, 

180 
180 

• 

181 

65, 

102 

238 

.  78 

102 

211 
79 
79 

• 

102 
102 

t3-1647,— 

,  23, 

25,  35,  88 

. 

37 

• 

199 
37 

INDEX. 


287 


CONNECTICUT,—  continued. 

consociations,  .  .  .  .  .92,  238,  239 

support  of  Presbyterianism,      .  .  .  .  lOO 

Koman  Catholic  property  in,  .  .  .  .111 

COTTON  AND  NORTON,     .     .     86,  87,  89,  206,  232 

COUNCILS,  EUROPEAN, 

Trent,  Dort,  Westminster,        .  .  .  .72,  206 

Councils  and  Conventions  of  Churches,  — 

Cambridge,  1637,  against  Antinomians.  69,  74,  90, 
Cambridge,  1648,  .  49,  72,  76,  78,  92,  232,  334 
Savoy,  1658,  ....  73 

Council  of  1662,  ...  74,  208 

Reforming,  1680,    .  .  .  .         74,  75 

Saybrook,  1708,  ...  76,  238 

Convention  of  Universalists,  1863,  .     78,118 

of  Unitarians,  N.  Y.,  April,  1 865,     78,  275 
of  Congregation alists,  Boston,  June, 

1865,    .  .  .76,  245,  278 

CREEDS  -  COVENANTS -CATECHISMS-See  Churches. 


D. 

DEACONS,— 

their  corporate  rights  and  powers, 

not  standing  moderators,   . 

trustees  for  the  church, 

funds  in  hands  of,  not  a  general  charity,    . 

not  answerable  to  the  religious  society, 

but  answerable  to  committee  of  church,    .. 

suits  by  and  against,     . 

cannot  give  promissory  note, 

church  not  incorporated  with  deacons, 
DEDHAM   CASE,— 

minister  elected  by  the  town,   . 

its  principles  applied, 

confined  to  territorial  parishes, 
DENOMINATIONAL   CONTROVERSIES, 
See  Baptists— Episcopalians  —Methodists  — 
ANS  — Roman  Catholics — Unitarians— Un 
DISSENTERS,— 

decisions  affecting  Baptists,  Methodists,  Universalists. 

religious  freedom  act  of  1811, 


114 

115 

116 

116 

116 

11^ 

116 

116 

117 


51- 


60,  89 

60-65 

63 

81-85,  103-109 

Presbyteri- 


VERSALISTS. 


37,41 
.     43 


288 


INDEX. 


DISSENTERS,—  continued. 

their  certificates  of  exemption  from  tax, 

increased  by  tax  laws, 

constitutionality  of  act,  1811, 

English,  acts  to  check  their  growth, 

and  election  of  ministers, 

trust-deeds, 

licensed  chapels, 

baptism  requisite  for  tbeir  burial,     . 

not  eligible  as  promoters  of  godly  learning, 
DUDLEIAN  LECTURES, 
DUTCH  REFORMED  POLITY,  and  Appellate  Courts 


. 

44 

.      44 

. 

45 

.       46 

. 

50 

.     128 

, 

141 

.     159 

171 

.       88 

late  Courts, 

92,  213 

E. 


ECCLESIASTICAL  COUNCILS,— 

for  dismissing  ministers,  a  requisite,     . 
ex  parte, 

topics  examined  before  the  Revolution, 
mutual,       .... 
their  spiritual  functions, 
for  settlement  of  ministers, 
for  establishing  churches, 
courts  declining  to  act  until  the  result  is  reached, 
oflfer  and  notice  in  writing, 
not  a  standing  body,     . 
expires  with  the  result, 
^  joining  in  council, 

for  solving  difficulties, 

protest  of  party, 

impartiality  of  members,    . 

desirable  to  have  neighbors,      . 

member  not  a  juryman,     . 

topics  that  may  be  examined, 

letter  missive,  and  witnesses, 

the  result,  ..... 

form  of  result  in  case  of  heresy, 

moods  of  parties  on  receiving  the  result, 

publishing  result,      .  .  .  • 

resulta,  how  far  binding  in  the  Episcopal  church, 


92,  212,  217 

92,  212,  228 

210,  224,  233 

.       211 

.     211,239 

211,  239 
.  211,239 
.    213,  233 

212,  217 
214 

214-217 

.    215,  218 

.       217 

219 

219,  220 

220 

.       220 

224 

227,  228 

.    229,  234 

.     230 

231 

.     231 

231 


INDEX. 


ECCLESIASTICAL  COUNCILS, 

—  continued. 

the  result,  how  far  parties  bound  to  accept  it  in  view  of 

the  churches, 

. 

234 

occasions  when  results  might  be  enforced  by  theory  of 

old  writers, 

. 

234,  241 

not  bound  to  accept  in  advance 

,            .             .             . 

235 

not  a  board  of  referees. 

. 

.       236 

what  is  an  acceptance  of  a  result. 

236,  237 

when  the  court  protects  a  party 

acting  under  a  result, 

.       240 

when  it  protects  third  parties,  . 

244 

ECCLESIASTICAL  COUNCILS 

CITED,  — 

Boston  and  Ipswich,  1655, 

206,  237 

Bradford,  1744, 

. 

82,  225 

Brooklyn,  Connecticut,  1816, 

215 

Berkley,  1830, 

. 

82 

Bolton,  1773,    . 

90^213 

Brimfield,  1801,      . 

. 

95 

Cambridge,  1825, 

82 

,  98,  218 

Chebucco,  1767,     . 

. 

82 

Coventry,  Connecticut,  1811, 

215 

Dedham,  1820, 

. 

56 

Deerfield,  1813, 

82 

Dorchester,  1773,  .  • 

. 

82,  223 

1812, 

82,  98 

Eastham,  1723, 

81,  97,  212,  215,  226, 

231,  234 

Easton,  1820,    . 

90 

Exeter,  N.  Hamp.,  1842,    . 

. 

81 

Fairchild's  case,  1852,  . 

244 

Fitchburg,  1801,     . 

.       51,  56,  81 

,  92,  217 

Framingham,  1748, 

225 

Goshen,  1818, 

. 

82 

Groton,  1828,   . 

82,  98 

Haverhill,  1760,      . 

. 

82 

Hingham,  1806, 

58,95 

HoUis  St.,  Boston,  1840,    . 

94,  134,  227, 

228,  243 

Hopkinton,  1735, 

81,92 

Hooper  Cummings,  New  York 

1817,        . 

.       239 

Ipswich,  1805,  . 

95,  231 

Lancaster,  1833,     . 

. 

.       115 

Manchester,  1822, 

95 

Middleboro',  1745, 

51,  58 

,94,115 

290 


INDEX. 


ECCLESIASTICAL  COUNCILS  CITED,— confmt/c(f. 

Newbury,  1767, 

82,225,234 

New  Bedford,  1863, 

82 

Northampton,  1750, 

.     215,  229 

New  North,  1719,  . 

89,  231 

Pittsfield,  1807, 

95 

Portland,  Maine,  1865, 

106 

Princeton,  1817, 

56,  82 

Providence,  1832,  . 

82 

Puritans,  Church  of,  New  York,  1857,              .             .        82,  94 

Heading,  1847, 

.    81,  82,  216,  221,  236 

Rehoboth,  1825, 

82,  93,  215 

Salem,  1733, 

.      83,  212,  225 

1775,      . 

58 

1830, 

217 

-       "        1849,     . 

135 

Sandwich,  1811,      . 

.       241 

Springfield,  1736, 

.82,215,225,231 

Stockbridge,  1779,  . 

.       226 

Wareham,  1845, 

.        82,94 

Westboro',  1859,     . 

81 

Weymouth,  1637, 

.      81,226 

Worcester,  1820,     . 

...             .             .82 

Wrentham,  1830, 

.94 

ELECTION  SERMONS, 

88, 

EPISCOPAL   CHURCH,— 

early  exempt  from  taxes, 

37 

ordination. 

97 

controversies  with. 

103 

convention  of  churches, 

118 

wardens  and  vestry, 

.       131 

their  by-laws,     . 

131 

Trinity  Church,  Boston, 

145,  177 

Theological  Seminary,  visitors,             .             .            .             177 

Trinity  Church,  New  York,            .             .             .           155,  168 

supei'vision  of  bishops,  . 

233 

of  other  clergy, 

.      97,  141,  178,  220,  231,  239 

ESTABLISHED  CHURCH, 

ENGLAND,— 

articles  and  homilies,  how  construed  by  courts,     .             .         80 

Magna  Charta, 

76 

no  corporation, 

.            .             .             .119 

INDEX.  291 

ESTABLISHED   CHURCH,  ENGLAND,  —  confonr/erf. 

its  supervision  of  repairs,  .  .  .  .  .140 

of  ministers,  80,  95,  97,  99,  104,  109,  141,  143,  178 

its  relations  to  parliament,  .  .  .  181,  239 

appeals  in  ecclesiastical  conrts,  .  .  .  178 

acts  of  uniformity,  .  .  .55,  97,  119,  159,  176 

ESSEX  STREET    TRUST-DEED,        ...  128 

F. 

FEDERAL  STREET  MEETING-HOUSE  CASE,  126,133,174 
FORFEITURES, 170 

land  in  Cambridgeport,  .  .  .  .170,172 

Attleboro,  .  .  .  .  .  .170 

G. 

GENERAL  COURT,— 

support  of  Gospel,        ....  20,  25,  65 

setting  off  men  and  lands,  .  .  .  .20 

forming  parishes,  .....  21 

aiding  feeble  churches,        .....        22 

regulating  attendance  on  worship,       ...  27 

as  guardian  of  the  church,  .  .  .  .69 

calling  general  councils  ....  74 

its  qualified  assent  to  results  of  councils,  .  .  .73 

its  protection  of  ministers,        .  .  .  .88,  113 

Mr.  Pynchon's  case,  .  .  .  .  .69 

its  supervision  6f  meeting-houses  and  parishes,  .     122,  142 

of  towns  and  schools,         .  .  .149 

of  charities,      .  .  .  .      161,  180 

of  ecclesiastical  councils,  .  .    204,  209,  234 

GORHAM  V.  BISHOP  OF  EXETER,     .  .  .80,  97 

GRANTS  NOT  REVOCABLE,  .  .  .  .180 

GREAT  AWAKENING,  1740,      ....  94 

its  theological  and  ecclesiastical  effects,     .  .  .94 

discussions  occasioned  between  Presbyterians  and  Con- 

gationalists,  .  .      '      .  .  102,  209, 225 

H. 

HALF-WAY  COVENANT  AND  COUNCIL  OF  1662,  74 

effects  on  New  England,    .  .  .  .  .80 


292  INDEX. 

HARVARD   COLLEGE.     See  Colleges. 

HEIDELBURG   CATECHISM,     .  .  .  .  174 

Arminian  and  Calvinistic  adherents  both  meritorious 

in  law,          ......     174,  206 

HERESY, 99 

de  Haeretico  Comburendo,        ....  229 

HODGE  V.  PARK.     Presbyterian  and  New  England  theology,     102 
HOLLIS  PROFESSOR,  .  .  .  .  ' .      174 

HOLLIS    STREET   CHURCH,      .  .  .94,  134,  243 

HOPKINS'  FUND, 163 

HOPKINSIAN  AND  CALVINISTIC  MEASURES,     .  173 

both  good  in  law,  .  .  .  .  .  .173 

HORSE-SHEDS, 139,  154 

I. 

INCORPORATION,— 

acts  for  religious  and  charitable  purposes,  .            .     112,182 

progress  of,  from  1810,       .             .             .  .             .       125 

when  presumed  for  a  religious  society,  .            .            124 
INSTALLATION, 

when  required  in  law,               .            .  .            .      76,  185 

K. 

KING'S   CHAPEL, 

its  change  to  Unitarianism,  .  .  .  .126 

suit  to  recover  lands ,    .  .  .  .  .  172 

its  pew-holders,  1775,         .  .  .  .  .       223 

its  share  in  Price  Legacy.     See  Att'y  Genl.  v.  Trin.  Ch.        177 

KNEELAND'S  CASE,  Blasphemy,     .  .  .  .198 


LEGACY,  may  be  lost  for  want  of  asking,        .  .  .165 

LIMITATION,  STATUTES  OF,  when  applicable,      126,  172,  190 

LORD'S   DAY, 193-197 

colony  laws,      .  .  .  .  .  .  193 

later        "  ......       195 

8ta£:e-coaches,   .  .  .  .  .  .  195 


INDEX. 


293 


LORD'S  T> AY,— continued. 

travelling  on,  necessity  or  charity, 
labor  and  business,       -  .  .  . 

Deeds,  leases,  wills,  .... 

judicial  proceedings  on, 

M. 

MAGNA  CHARTA  — Art.  77  and  Established  Church 
MANDAMUS   TO  BISHOP,  to  Methodists 

the  tone  of,  in  Presbyterian  Assembly, 
MARRIAGE, 

colony  laws, 

publishment  of, 

Thursday  Lecture, 

clerk's  certificate, 

minister's  certificate, 

recording  certificate, 

color  of  candidates,  • 

competent  age  and  capacity, 

ceremony,  , 
^       ecclesiastical  council  as  to,  Stockbridge,  1779 
MEETING-HOUSE,— 

who  owns  it,      . 

the  building  committee,  their  powers, 

rebuilding,  repairs,  removal,     . 

architecture  of, 

subordination  of  proprietors  of,  to  general 

sanctity  and  protection  of, 

ventilation  of,    . 

when  dedicated  to  public  use, 

used  for  town  purposes, 

meeting-house  and  town-house, 

meeting-house  lot, 

precincts  of,  and  contests,   . 

absence  from,  fined  until  1835, 
METHODISTS,  — 

tax  laws, 

and  Unitarians, 

divisions  occasioned  by  slavery, 


. 

197 

197 

, 

197 

195 

76 

170, 

22-t 

224 

185 

-226 

185 

187 

187; 

232 

188 

189 

190 

191 

192 

192 

226 

136 

-140 

142 

141 

143 

141 

142 

143 

169 

139 

140 

17 

,  150 

152 

27 

41 

54 

104 

67,  94 

294 


INDEX. 


METHODISTS,  —  continued. 

their  supervision  of  charities, 

. 

180 

of  ministers, 

.  91,9 

2,  95 

mandamus  to  minister. 

170 

224 

the  polity  of,  and  discipline,      .           78,  142, 

170,  186,  213 

239 

jnveighing  against  it,          . 

. 

222 

controversies  with,         .             .             .            . 

.       50 

104 

liability  to  cleavage,             .             .             . 

106 

222 

religious  society,  officers, 

132 

meeting-house,  control  of,  in  Conference,  . 

170 

224 

title  to, 

, 

138 

their  protection,     . 

. 

142 

camp-meetings,             .            .            .            . 

105 

lay  representation, 
MTNT'SiTTT'T? 

• 

50 

early  support  of,           ...            . 

16 

early  regard  for,    .... 

. 

85 

approbating,  licensing,  ordaining, 

96 

elected  by  town,  under  former  parish  laws, 

. 

53 

usage  as  to  election,      .            .            .            . 

65 

among  Baptists, 

. 

49 

among  Presbyterians, 

f5 

his  tenure  of  office. 

. 

89 

his  official  and  personal  character, 

91 

his  control  of  pulpit  and  exchanges, 

. 

98 

dissatisfaction  with,  in  early  times, 

85 

slander  of,  . 

. 

95 

the  people's  right  to  complain  of  him, 

222 

his  veto  power,       .... 

. 

223 

exempt  from  taxation,  when,    . 

.    185, 

186 

his  demission  of  office. 

109 

excluded  from  parliament  and  bar, 

109 

ecclesiastical  council,  when  and  how  offered, 

88-94,  212, 

217 

charges  against,  heresy, 

.       99, 

229 

misconduct,             .... 

95- 

-100 

his  salary,          ..... 

.       92, 

235 

mandamus  in  his  behalf,     . 

.  170,224, 

236 

his  rights  as  moderator. 

222 

obtains  a  town  settlement, 

. 

109 

his  parsonage  and  ministerial  lot. 

.     113, 

124 

a  corporation  sole,  when,   . 

. 

110 

. 

Ill 

. 

173 

)4,  231, 

238 

.   89, 

100 

. 

100 

. 

228 

228 

231 

.  167 

182 

, 

86 

, 

178 

. 

129 

INDEX.  295 

MINISTEE,  —continued. 

ministerial  fund,     ..... 

strict  compliance  with  terms  of, 

ministerial  association,       .  .  .96, 

Ministerial  General  Association,  Pastoral  letters, 
its  support  of  Presbyterianism, 
on  attending  ex  parte  councils, 

attending  councils,  out  of  association,  in  1714,      . 
MORTMAIN,  English  statutes  of,  not  adopted, 
MOSAIC  LAW,  adapted  to  colonial  times,      . 
MURDOCK'S  CASE,  Andover  Seminary, 
MUSIC,  tax  for  support  of,  1822, 

N. 

NEW  BRAINTREE,   1847,— 

the  last  town  to  have  separate  parish  organization,  .      137 

NEW  MEASURES  AND  NEW  LIGHTS,       .  .      94,  209 

NORTON  (Rev.  John),  .  .  .  .89, 206, 232 

o. 

OLD   SOUTH,— 

its  fonnation,  .....  61,122 

its  library,  .             .             .             .            •  .        82,  83 

its  records, 62,225,228 

P. 

PAMPHLETS,— 

council,  and  others,  where  found,         56,  83,  118  209,  215,  221, 

225,  238 
PARISH,  — 

religious  society  and  precinct  equivalent,  .  .  18,120 

parish  and  town  formerly  equivalent  terms,     .  .18,  253 

parishes,  territorial,  and  Dedham  case,      .  .  .63 

West  Andover,  1826,  the  last  territorial  parish  incorporated,    19 
making  new  parishes  by  General  Court,    .  .  18,  122 

setting  off  men  and  land,  .  .  .  •  21 

parish  member  ex  necessitate,        .  .  .  ,33 

who  are  members,  ...  20,  28,  31,  33,  132 

debts  of  parish  until  1837,  personal  liability  for,   .  .         29 

liability,  now,  how  limited,     .  .  •  .33,  254 

voluntary  religious  society,  .  .  •  .120 


296 


INDEX. 


TA'RISB.,— continued. 

incorporated,     ..... 

43,  120 

trust-deeds,  1809,    .             .             .   *         . 

.       127 

incorporation  of  dissenters  after  1810, 

123 

of  Orthodox  after  Dedham  case,     . 

.       124 

special  acts  of  incorporation,  1810-1855, 

125" 

general  acts,       ■     . 

.       121 

has  power  to  tax  itself, 

129-131 

mode  of  levying  and  collecting  taxes, 

.       129 

by-laws  of  religious  society, 

131,  132 

organizing       "             «                  ... 

.       132 

officers  of         "             " 

131 

may  hold  funds  for  schools. 

.       130 

may  hold  property  to  what  amount,      . 

182 

may  change  its  denomination,  when, 

128,  174 

religious  societies  are  public  corporations. 

130 

quo  warranto,  when  it  lies  for  and  against  them, 

119,133 

mandamus,               "         "                  "           " 

.       133 

not  a  public  charity. 

. 

133 

merger  of,    . 

.       124 

dissolution  of,     . 

. 

134,  174 

subordination  of  proprietors  to  rights  of  the  parish,      140 

of  sewing  curcles  to            "          " 

<( 

141 

PARKER'S   CASE,             .... 

. 

230 

PARK  STREET  TRUST-DEED,  1809,   . 

.      127 

PARSONAGE,  — 

early  laws  for,         ..... 

26 

repairs  on,         ....            . 

113 

PENAL    LAWS,— 

penalties  for  not  supporting  worship,  . 

27 

against  Baptists, 

35 

Quakers, 

36 

Witches,  .... 

36 

Papists, 

36 

proclamations  and  preambles  of  law. 

.       194 

penalties  for  not  attending  church, 

27 

for  disturbing,      .... 

.       142 

for  other  topics  —  Atheists,   Blasphemy, 

the 

Lord's  Day, 

193-203 

PEPPERELL  BURIAL   GROUND, 

. 

155 

LAKIN  V.  AMES, 

156 

INDEX. 


297 


PEWS,— 

personal  property  in  Boston  since  1799,     .            .  ,       145 

in  the  Commonwealth  since  1852,          .  ,             146 

taxable  on  valuation,           ...  38,  146 

not  attachable  on  execution,      .            .  .            146 

suits  between  pew-holders  at  law,    .            .  .142 

apart  from  pews,  pulpit  cannot  be  attached,     .  .             146 

recording  mortgages  and  deeds  of  pews,  •.            .  .       146 

sale  of  by  treasurer  for  non-payment  of  taxes,  .             146 

statutes  in  regard  to  pews  from  1780-1860,           .  .147 

using  pews  for  secular  purposes,           .             .  .             148 

selling  pews  of  Methodist  church  and  distributing  proceeds,  142 


Unitarian        "  " 

pew-holders  bond  fide  changing  the  denomination,  . 

free  pews,  allotment,      ..... 

monopolizing  pews,  .... 

subordination  of  pew-owners  to  parish  rights,  .        133, 
their  rights  and  duties  when  a  minority, 
PINE  STREET  TRUST-DEED,  1828,   . 
PRECINCT.     See  Parish. 
PRESBYTERIANS,  — 

not  exempt  from  tax,         .... 

usage  as  to  electing  ministers,  . 

element  in  early  Congregationalism, 

third  way  of  communion, 

act  and  testimony  1736  and  1836, 

excision  of  new  school  churches, 

free  church  of  Scotland,  1843, 

tendency  to  cleavage, 

topics  of  controversy  with, 

their  general  assembly,  its  powers, 
not  a  corporaton, 
its  claim  to  supervise  charities 

ruling  elders,     . 

doctrinal  solicitudes  of, 

the  book  of  discipline,  . 

subscription  to  symbols, 

trials  before  general  assembly,    . 

subordination  of  trustees  to  session  of  churches 
PRINCETON  COUNCIL,   1817, 

Boylston  legacy  to,     . 

Theological  Seminary, 
PYNCHON'S  CASE,       "     ,  , 


175 

128,  174 
130,  145 
134,  145 


140. 


148 
236 
128 


37 

65 

.       75,  92,  238 

83,  92 

101 

58,  67,  100,  106,  173 

54,  58,  67 

106 

82,  102,  105 

210,  213 

119 

180,  183 

114 

.       102 

77 

72,  176 

239,  245 

148 

56,82 

173 

100,  168 

69 


213, 


298 


INDEX. 


Q. 

QUAKERS,— 

penal  laws  against,              .             .  .            .            .35 

their  relief  from  penal  laws  and  taxes,  .            .              36 

certificates  of  relief  from  military  duty,  .             .             .44 

trustees  of  charities,      .            .            .  .            .            164 

Swanzey  case,         .             .             .  .         '    .           166,  173 

limit  of  income  of  monthly  meeting,   .  .            .            1 82 

their  appellate  courts,         .            .  .            .            .213 

QUO  WARRANTO,             .            .            .  .         119,  133, 224 


RACCOVIAN  CONCESSION,— Polish  Unitarians, 
READING  COUNCIL,  1834,     . 
"  "  1847, 

"  "  points  discussed, 

REHOBOTH  TOWN  AND  COUNCILS, . 
RELIGIOUS  FREEDOM  ACT,  1811,. 

constitutional,     ..... 

and  Convention  of  1820,     . 
RELIGIOUS  SOCIETY.     See  Parish. 
REVIVALS,  — 

great  awakening,  1 740, 

measures,  views  of,        . 

international,  1740,  1858,  . 
ROMAN  CATHOLICS,— 

their  early  penalties,      .... 

controversial  topics  with,    . 

bishop's  control  of  lands  and  property, 

property  question  in  Connecticut  and  New  York, 

religious  societies  have  no  acts  of  incorporation, 

Trent  council  and  catechism, 

Bossuet  V.  Fenclon.    Heresies, 

Convent,  Charlestown, 

College  of  Holy  Cross, 

English  charities,   .... 

s. 

SLAVERY,  Explosions  occasioned  by, 
SALEM.     Councils  and  discussions, 
SERVETUS, 
SHREWSBURY,  its  settlement. 


.     216 

221 

.     222 

203,  209,  216 

.       30,  43-46 

45 

.      47 


94 
94 

94 


36 
88,  107 

111 
.       Ill 

125 
107,  206 

229 
.       202 

176 
167,  181 


94 

58,  83,  117,  135,  217-233 

107 

.       149 


INDEX. 


299 


TAXES.     See  Dissenters  —  Ministers  —  Parish  —  Pews. 

TENURES, 127,  170,  173,  174 

THEOLOGICAL  SEMINARIES,— 

Andover,  Murdock's  case,  appeal,  .  .  .178 

creed  of  church  in,        .  .  .  .  .  •  281 

Harvard,  court's  power  to  sever  it  from  the  college  denied,     168 
Princeton,  its  power  to  receive  books  and  funds  of  Asso- 
ciate Reformed  Seminary  denied,         .  ♦.  .168 

THURSDAY  LECTURE,  .  .  .  .     187, 232 

TOWN,— 

boundaries  of,         .  .  .  .  .  17,  150 

support  of  Gospel  by,  .  .  .  .  .      26,  150 

parish,  precinct,  and  district  become  towns,  .  .18 

formation  of,  town  described,  .  .  .         149,  156 

roads,  greens,  commons,  .  .  .  .  150 

town-hall  and  town-house,  .  .  .       140 

town  and  parish  one,     .....     137-152 
grants  of  town  to  parish,    ....  150-180 

conflicts  of  towns  with  dissenters,  .      .  .  .  39 

"        of  towns  with  churches,  .  .  .  .57 

"        of  town  and  parish,  .  .  .  153 

discharged  in  1834  from  all  care  of  the  Gospel,    .  .        64 


u. 


UNIFORMITY,  ACTS  OF, 

. 

.         57, 97, 

119,  159,  176 

UNITARIANS,— 

history  and  doctrinal  controversies. 

51,  68,  82 

,  83,  106,  174 

ancient  creeds,  . 

. 

80 

ecclesiastical  councils. 

. 

56,  82,  98, 

215,  225,  228 

Princeton  Trust, 

,             , 

173 

Dedham  Case, 

. 

. 

50-59 

"      appHed, 

. 

59-66 

Parker's  Case, 

• 

. 

.       230 

and  Congregationalism, 

, 

.       78,  238 

in  Connecticut, 

. 

. 

55 

convention,  1865, 

TTXTTVT^RQ  ATLTQTQ 

• 

.      78,  275 

UiXi  V  Jiilvo  AJ^iO  J.  o,  — 

and  tax  discussions. 

. 

40,  42 

Murray  and  Gloucester, 

. 

39,40 

full  creed  of  Universalis  ts. 

1803, 

. 

68,  79 

300  INDEX. 

UNIVEESALISTS,  —continued. 

convention,  1863,      .  .  .  .68,  78,  79,  95,  118 

supervision  of  ministers,  .....  95 

topics  of  controversy  with,       ....  106 

testimony  in  courts,  .....      201 

and  Congregationalism,  .  .  .  .      78,  118 

baptism  and  Lord's  supper  optional  with,  .  .        68 


V. 

VIRGINIA,  — 

Virginia  and  Baptists,  ....  38 

Bill  of  Rights, 39 

church  and  state  until  1799,     .  .  .  .  45 

members  of  religious  society  cannot  tax  themselves,        .  65 


LIST  or  CASES  CITED 


Adams  y.  Bucklin,  7  Pick  121, 163 

V.  Howe,  14  Mass.  344, 46 

Allen  V.  McKeen,  1  Sumner,  276, 171, 179 

Amherst  Academy  v.  Cowles,  6  Pick.  427,       .         .         .         .         175 
Amesbury  Nail  Fac.  v.  Weed,  1 7  Mass.  54,  ....       28 

Att'y  Gen'l  v.  Projirietors  Federal  Street,  3  Gray,  39,  126,  133,  169, 

172,  174,  175 

V.  Trinity  Church,  Boston,  9  Allen,        165,  167,  169,  177 

V.  Merrimack  Co.  4  Gray,  586,  . 

V.  Gould,  3  Times  Rep.  495, 


Austin  V.  Cambridgeport,  21  Pick.  215, 

V.  Murray,  16  Pick.  121, 

V.  Thomas,  14  Mass.  333, 

Avery  v.  Tyringham,  3  Mass.  181, 


.  133,  136,  169 

127 

.  170 

158 

.  137 

52,  69,  76,  89,  90,  240 


B. 


Baker  v.  Fales,  16  Mass.  488, 

V.  Lee,  2  Times  Eep.  701, 

Barnes  v.  Falmouth,  6  Mass.  401,     . 

V.  Shore,  4  Ecc.  Cases,  593, 

Bangs  ?7.  Snow,  1  Mass.  181,    . 
Baldwin  v.  Fitchburg,  8  Pick.  494, 
Baptist  Ch.  v.  Rouse,  21  Conn.  161, 
Bartlett  v.  King,  12  Mass.  545,     . 

V.  Nye,  4  Met.  378,   _   . 

Beamish  v.  Beamish,  Ho.  Lords,  . 
Bellingham  v.  Boylston,  4  Cush.  553, 
Batchelder  v.  Ames,  8  Cush.  247, 
Bennett  v.  Brooks,  9  Allen, 
Blackburn  v.  Walpolc,  9  Pick.  97, 


.  52,  76 

.  171 

43 

.  141 

129 

.   21 

53 

162,  167 

164 

184,  192 

110,  186 

.  151 

97 

.   90 


(301) 


302 


LIST  OF  CASES  CITED. 


Blandford  v.  Gibbs,  2  Cusli.  39,        .        .        . 
Bliss  V.  Am.  Bible  Soc.  2  Allen,  334, 
Bonwell  v.  Bp.  London,  4  Times  Rep.  815, 
Boutelle  v.  Cowdin,  9  Mass.  254, 
Bosworth  V.  Swansey,  10  Met.  363, 
Boothbay  v.  Wylie,  43  Maine,  387,        .         .  ^ 
Brattle  Street  Proprietors  v.  Grant,  3  Gray,  142, 
Bridge  water  v.  Waring,  24  Pick.  309, 
Brattle  Street  Church  v.  Ballard,  2  Met.  363, 
Bro^vn  v.  Kelsey,  2  Gush.  243,      .         .         .         . 
Bp.  Down  V.  Miller,  5  Times  Rep.  30, 
Brunswick  v.  Dunning,  7  Mass.  447,    . 
Bucksport  V.  Spofford,  3  Fairfield,  487,      . 
Burden  v.  Spear,  1  Ecc.  Cases,  39,       .        .        . 
Burder  v.  Heath,  6  Times  Rep.  562, 
Burru.  Sandwich,  9  Mass.  277,    .         .         ,         . 
Burbank  v.  "Whitney,  24  Pick.  146, 


53 


124 

.     164 

95 

.       56 

196 

51,  155 

172 

137,  141 

146 

.     164 

141 

.     110 

11,  155 

.       95 

80 

91,  241 

163 


c. 

Cardinal!  v.  Molyneux,  4  Times  Rep.  605, 
Cheever  v.  Pierson,  1 6  Pick.  272,      . 
Clark  V.  Quincy  Ev.  Soc.  Gray,  1858, 
Choate's  Life  and  Writings,  1,  135, 


167, 


"       "  "  1,  170,  . 

Chase  v.  Merrimac  Co.,  19  Pick.  557,  . 
Christian  Soc.  v.  Macomber,  3  Met.  235, 
Cobb  V.  Kingman,  15  Mass.  197,  . 
Col.  Soc.  V.  Smith,  2  Allen,  302, 
Cochran  v.  Camden,  15  Mass.  304, 


Commonwealth 


V.  Fisk,  8  Met.  238, 
V.  Spooner,  1  Pick.  234, 
V.  Buzzell,  16  Pick.  153, 
V.  Knox,  6  Mass.  76, 
V.  Collins,  2  Gush.  556,  . 
V.  Maxwell,  2  Pick.  139,     . 
V.  Knecland,  20  Pick.  206, 
V.  Roxbury,  9  Gray, 
V.  Waterboro*,  5  Mass.  257, 
V.  Green,  4  Whar., 


67,  100, 


.     141 

110 

.     236 

197 

.     244 

67 

.       29 

121 

.     124 

165 

91,  217,  223 

174 

.     186 

186,  202 

.     195 

197 

.     197 

198 

.       17,  150 

27 

127.  223 


LIST  OF  CASES  CITED. 


303 


Commonwealth  v.  Knapp,  9  Pick.  496,    . 

V.  Drake,  15  Mass.  161,      . 

V.  Symonds,  2  Mass.  163, 

V.  Porter,  1  Gray,  476, 

V.  Fahey,  5  Cush.  408,    . 

V.  Vial,  2  Allen,  512, 

V.  Wellington,  7  Allen,  299, 

Crandall  v.  State,  10  Conn.  340, 


71 
71 
142 
142 
158 
159 
159 
177 


D. 


Dall  V.  Kimball,  6  Maine,  123, 
Damon  v.  Granby,  2  Pick.  345,    . 
Davison  v.  Johonnot,  7  Met.  388, 
Daniel  v.  Wood,  1  Pick.  102, 

V.  Hayward,  9  Gray,  248, 

D'Augars  v.  Rivaz,  3  Times  Rep.  110, 
Den  V.  Bolton,  7  Halstead,  206, 
Dexter  v.  Gardner,  7  Allen,  247, 
DifFendorf  y.  Trustees,  20  Johnson,  12,     . 
Doremus  v.  Dutch  Ref.  Ch.  2  Green's  Ch.  332 
Dow  V.  Sudbury,  5  Met.  73,      . 
Dublin  Case,  38  N.  Hampshire,  460,     . 
Dutch  Ch.  V.  Bradford,  8  Cowen,  457, 


163 


28 
142 
181 
141 
160 
99 
213 
166,  213 
213 
115 
130 
78,  173,  175 
92,  99,  213,  239 


164, 


E. 

Eager  v.  Marlboro',  10  Mass.  430, 137 

Earl  V.  Wood,  8  Cush.  430, 45,  166,  175,  223 

Easterbrook  v.  Tillinghast,  5  Gray,  17, 134 

Eastman  v.  Wright,  6  Pick.  316, 142 

Episcopal  Ch.  v.  Episcopal  Ch.  1  Pick.  371,        .        .        .        .124 
Escott  y.  Martin,  1  Ecc.  Cases,  552, 159 


E. 

Fairchildy.  Adams,  11  Cush.  549, 71,244 

y.  Adams,  1  Choate's  Life,  167,        .        ,        .        .  244 

Law  Reporter,  14,  278, 244 

Law  Reporter,  14,  395, 244 

Famsworth  y.  Storrs,  5  Cush.  412, 71 

Eassettv.  Boylston,  19Pick.  361, 142 


304 


LIST  OF  CASES  CITED. 


Feraald  v.  Lewis,  6  Maine,  264, 29 

Fernall  v.  Criiig,  5  Ecc.  Cases,  557, 95 

Fisher  v.  Whitman,  13  Pick.  350,          ...          29,  43,  120,  132 

V.  Ellis,  3  Pick.  322, 165 

Fitzpatrick  i\  Fitz^^erald,  13  Gray,  400, Ill 

Flagg  V.  Milburj,  4  Cush.  243, 196 

Foster  I'.  Brings,  3  Mass.  313, 163 

Freeland  v.  Neal,  6  Ecc.  Cases,  252, 143 

French  v.  Quincy,  3  Allen,  9, 140 


G 

Gage  V.  Currier,  4  Pick.  403,    . 
Gay  V.  Baker,  17  Mass.  435, 
George  v.  Mendon,  6  Met.  510, 
Goff  V.  Rehoboth,  12  Met.  26, 
Goddard  v.  Smithett,  3  Gray,  116, 
GoodellMff.  Co.  v.  Trask,  11  Pick. 
Gorman  v.  Carrol,  7  Allen,  199, 
Gorham  v.  Bp.  Exeter,  14  Jurist,  . 
Going  V.  Emery,  16  Pick.  107, 
Gorton  v.  Hadsell,  9  Cush.  508,  . 
Greene  v.  Maiden,  10  Pick.  499, 
Gregg  V.  Wyman,  4  Cush.  322,   . 
Gridley  v.  Clark,  2  Pick.  403,  . 
Guild  y.  Richards,  16  Gray,  . 


515, 


H, 

Hadley  v.  Hopkins,  14  Pick.  253,     . 

Harvard  Coll.  v.  Theological  Sem.  3  Gray,  280, 

Hamblette  v.  Bennett,  6  Allen,  140, 

Hawes  v.  Mann.  His.  Soc.  1786,  . 

Hayden  v.  Stoughton,  5  Pick.  528, 

Hadsell  v.  Hancock,  3  Gray,  526, 

Hayvvard  v.  Pilgrim  Soc.  21  Pick.  275, 

Hawes  PI.  v.  Trustees,  5  Cush.  454, 

Hanson  v.  Stetson,  5  Pick.  506, 

Heath  v.  Burder,  6  Times  Rep.  562, 

Hendrickson  v.  Dccow,  1  Saxton,  577, 

Hill  V.  Dunham,  7  Gray,  543, 


32 

.     136,  145 

140 

.     139 

133,  168 

.       28 

176 

•      80,  178 

162 

.     141 

113 

.     197 

76 

142,  170,  213 


161,  1 


,  175 

.     168 

137,  141 

.     223 

170 

.     140 

142 

.     112 

176 

80,  178,  212 

166,  213 

.     197 


LIST  OF  CASES  CITED.  305 

Hodgson  V.  Oakley,  4  Ecc.  Cases,  183, 72 

Hollis  Streets.  Pierpont,  7  Met.  499,  .         .         .      224,  225,  242 

Howard  v.  Bridgewater,  24  Pick.  304,       .....         141 

y.  Hay^vard,  10  Met.  408, 134,137 

Humphrey  y.  Whitney,  3  Pick.  237, 150 

V.  Whitney,  3  Pick.  164, 180 

Hunt  V.  Perley,  34  Maine,  32, Ill,  173 

9 
I. 

Inglee  v.  Bosworth,  5  Pick.  501, 130 

Inh.  Essex  v.  Low,  5  Allen,  595, 153 

Inh.  Milton  v.  First  Congl.  10  Pick.  447, 154 

Ipswich  Grammar  School  y.  Andrews,  8  Met.  587,   .        .        .  175 

Ives  V.  SterUng,  6  Met.  310, 176 

J. 

Jackson  v.  Rounseville,  5  Met.  127, 148 

Jarvis  y.  Hathaway,  3  Johnson,  181, 71 

Jeftsy.  York,  12  Cush.  196, 116 

Jewish  Trusts,  28  Bear.  1, 167 

Johnson  v.  WiUis,  7  Gray,  164, 196 

Jones  y.  Jelf,  8  Times  Rep.  400,  .        .        .        .        .        .141 

K. 

Keith  y.  Howard,  24  Pick.  292, 33 

Kendall  v.  Kingston,  5  Mass.  524, 42 

King  y.  Rossier,  3  Times  Rep.  159, 143 

Kingsbury  v.  Stark,  8  Mass.  155, 21 

King's  Chapel  y.  Pelham,  9  Mass.  501,    .        .        .      '  .        .  172 


Ladd  y.  Clement,  4  Cush.  476, 132 

Lang  y.  Purvis,  5  Times  Rep.  809, 127 

Lakin  v.  Ames,  10  Cush.  189, 151,  156,  157 

Lanesboro'  v.  Curtis,  22  Pick.  320,       .        .        .         .       113,  150,  180 

Lawrence  v.  Fletcher,  8  Met.  153, 45,  121 

Leavitty.  Truair,  13  Pick.  Ill, 32 

Leicester  v.  Fitchburg,  7  Allen,  90,  ....      50,  65,  109 


306 


LIST  OF  CASES  CITED. 


Lovell  y.  Bjrfield,  7  Mass.  230,    . 
Lord  V.  Chamberlain,  22  Maine,  67, 
Loring  v.  Marsh,  Mass.  Cir.  1865, 
Lowell  V.  Bancroft,  4  Cush.  281, 

Appellant  22  Pick.  215,    . 

Ludlow  y.  Sikes,  19  Pick.  323,  . 


.   43 

33 

.  171 

115 

.  163 
137,  152 


M. 


Manning  v.  Gloucester,  6  Pick.  6,     . 

V.  Moscow,  27  Barbour,  52, 

Means  v.  Presb.  Ch.  3  W.  &  S.  313, 
Medford  v.  Pratt,  4  Pick.  222,      . 
Merriam  v.  Stearns,  10  Cush.  217,    . 
Methodist  Church  case,  Choate's  Life,  1, 
McGinnis  v.  Watson,  6  Wright, 
Milford  V.  Godfrey,  1  Pick.  97, 
Miller  v.  English,  1  Zabriskie,  321, 
Middleboro'  v.  Rochester,  12  Mass.  263, 
Milford  V.  Worcester,  7  Mass.  48,    . 
Miller  v.  Gable,  2  Denio,  535, 
Mirick  V.  French,  2  Gray,  420, 
Minot  V.  Boston  Asylum,  7  Met.  416,  . 
Montague  v.  Dedhani,  4  Mass.  269, 
Murdock  v.  Phillips  Academy,  12  Pick.  244, 

V.  Trustees,  12  Pick.  243, 

Appellant,  7  Pick.  303, 

Mussey  v.  Bulfinch,  1  Cush.  160,     . 


. 

138 

• 

• 

128 
127 

• 

• 

138 
197 

• 

67 

170 
174 

• 

138 
124 

. 

. 

191 

184, 

192 

, 

174 

. 

176 

. 

. 

165 

42 

• 

92, 

223 
178 

178, 

223 

39, 

129, 

147 

N. 


Nason  v.  Whitney,  1  Pick.  140, 
Nelson  v.  Gushing,  2  Cush.  521, 
Newbury  v.  Dow,  3  Allen,  369,    . 
Newmarket  v.  Smart,  N.  H.  1865, 
Noursc  V.  MeiTiam,  8  Cush.  11, 


.  130 

169 

125,  146 

137 

.  166 


Oaks  V.  Hill,  10  Pick.  333, 
V.  Hill,  14  Pick.  442, 


26,  33 
33,  134 


LIST  OF  CASES   CITED. 


307 


Odell  V.  Odell,  10  Allen, 
Overseers  v.  Sears,  22  Pick.  122, 


172 
111 


P. 

Packard  v.  Universalist  Soc.  10  Met.  427,        .        .        .        .  131 

Page  u.  Crosby,  24  Pick.  211,      . 115 

Parker  v.  May,  5  Cush.  350,     ...        34,  62,  68,  115,  12j0,  169 

Parton  y.  Hervey,  r  Gray,  119, 191 

Patee  v.  Greely,  13  Met.  284, 197 

Peabody  u.  E.  Meth.  5  Allen,  540, 138 

Pease  ads.  York,  2  Gray,  282, 71 

Peckbam  v.  Haverbill,  19  Pick.  559, 113 

People  V.  Ruggles,  8  Jobnsou,  290, 201 

V.  Steele,  2  Barbour,  397, 170,  224 

Pine  Street  Ch.  v.  Weld,  Gray,  1858, 128 

Phillips  Academy  v.  King,  12  Mass.  537,      .         .         .         .     163,  174 

Will,  1  Choate's  Life  and  Writings,  1,  135,          .         .  197 

Presb.  Ch.  v.  Andrus,  1  Zabriskie,  328, 148 

Princeton  v.  Adams,  10  Cush.  128, 173 

'-  Theo.  Sem.  v.  Ass.  Reformed  Trus.  3  Green,  Ch.  77,  168 

Proprietors  Canal  Bridge  v.  Meth.  Soc.  13  Met.  335,        .         .  172 

Poole  V.  Bp.  London,  4  Times  Rep.  225, 179 

Portland  v.  Portland,  22  Conn.  58, 168 


Quincy  v.  Spear,  15  Pick.  146, 


Q. 


.     146 


R. 

Raynham  v.  Raynham,  23  Pick.  148, 
Redhead  v.  Wait,  6  Times  Rep.  580, 
Rehoboth  v.  Carpenter,  23  Pick.  131, 
Remington  v.  Congdon,  2  Pick.  313,    . 
Revere  v.  Gannett,  1  Pick.  169, 
Richardson  v.  Butterfield,  6  Cush.  191, 
Roberts  v.  Boston,  5  Cush.  198, 
Robertson  v.  Bullions,  9  Barbour,  64,  . 

V.  ,  1  Kei-nan,  255, 

Robeson  v.  French,  12  Met.  24,    . 
Rouse  ads.  Baptist  Church,  21  Conn.  161 


165 

.     139 

154 

.       71 

146 

31,63 

177 

169,  174 

58 

197 

53 


308 


LIST  OF  CASES  CITED. 


S. 


Sanderson  y.  White,  18  Pick.  328, 
Sargent  v.  Pierce,  2  jNIet.  80,    . 
Sawyer  v.  Baldwin,  11  Pick.  492, 
Saunders  v.  Head,  2  Ecc.  Cases,  145 
Sheldon  v.  Easton,  24  Pick.  286, 
Shrewsbury  v.  Smith,  14  Pick.  297, 
Simonds  v.  Heard,  23  Pick.  120, 
Skilton  V.  Webster,  1  Bright,  235,    . 
Sohier  v.  Wardens,  12  Met.  250, 

V.  Mass.  Hospital,  3  Cush.  483, 

Smith  V.  Swormstedt,  16  Howard,  301 
Spaulding  v.  Lowell,  5  Met.  35, 
Springfield  v.  Eoot,  18  Pick.  313, 
St.  Colomb,  8  Law  Times,  861, 
Stearns  v.  Woodbuiy,  10  Met.  27, 

V.  Bedford,  21  Pick.  214, 

Stebbins  v.  Jennings,  10  Pick.  172, 
St.  Lukes,  V.  Slack,  7  Cush.  104, 
Sturgeon  v.  Treas.  9  Barr.  321, 
Sudbury  v.  Stearns,  21  Pick.  148, 

V.  Jones,  8  Cush.  184,    . 

Sumner  v.  Dorchester,  4  Pick.  361, 
Sutton  V.  Cole,  3  Pick.  232, 


.  177 

146 

.   61 

.    .     80 

90,  99,  242 

149,  159 

.  142 

127 

.  163 

181 

.   67 

140 

.  139 

145 

.  157 

235,  244 

.   60 

123,  132,  133,  168 

.  223 

33 

.  157 

32 

.   130.  132 


Tainter  v.  Clarke,  5  Allen,  66, 
Taylor  u.  Edson,  4  Cush.  522, 
Thaxter  v.  Jones,  4  Mass.  570, 
Thellusson  v.  Woodford,  4  Vesey,  318, 
Thomas  v.  Elmaker,  1  Par.  98, 
Thurston  v.  Whitney,  2  Cush.  104,      . 
Thompson  v.  Page,  1  Met.  556, 

V.  Rehoboth,  5  Pick.  471, 

V.  Rehoboth,  7  Pick.  163, 

Thornton  v.  Howe,  10  Week,  642, 
Tibballs  i'.  Bidwell,  1  Gray,  399,      . 
Tobey  v.  Wareham,  13  Met.  440, 


167,  170,  177 

'.  111,132 

21 

.  182 

162,  163 

.  201 

176 

21.5,  225 

93,  213,  220 

.  167 

63,  112 

120,  137 


LIST  OF  CASES  CITED. 


309 


Turner  v.  Brookfield,  7  Mass.  60,        .        .        . 
Tucker  v.  Seaman's  Aid,  7  Met.  188, 
y.  Burlington,  16  Mass.  208,      . 

U. 

United  Germ.  v.  Cammeyer,  2  Sandford,  Ch.  216, 

V. 

Veley  v.  Gosling,  1  Ecc.  Cases,  479,     . 
Vidal  V.  Girard,  2  Howard,  127, 
Voorhees  v.  Presb.  Ch.  17  Barbour,     . 


.      43 

165 

28,43 


58 


24,26 

162 

.     148 


W. 


"Wardens  v.  Pope,  8  Gray,  140, 
Ware  v.  Sherburn,  8  Cush.  267, 
Washburn  v.  Sewall,  9  Met.  280,      . 
Way  V.  Foster,  1.  Allen,  408, 
Watkins  v.  Eames,  9  Cush.  539, 
Washburn  v.  Springfield,  1  Mass.  32, 
Webb  V.  Neal,  5  Allen,  575,     . 
Webster  v.  Vandeventer,  6  Gray,  428, 
Wells  V.  Doane,  3  Gray,  201,    . 

V.  Heath,  10  Gray,  26, 

Welch  V.  Wesson,  6  Gray,  505, 
West  V.  ShuttlcAvorth,  2  My.  &  K.  684, 
Weld  V.  May,  9  Cush.  181,       . 
Weston  V.  Hunt,  2  Mass.  500,      . 
White  V.  Brain  tree,  13  Met.  120, 
Whitman  v.  Congl.  Soc.  2  Gray,  306, 
Whitney  v.  Brooklyn,  5  Conn.  496, 
Williams  College  y.  Danforth,  2  Pick.  541  ^ 
Winslow  y.  Gumming,  3  Cush.  358,     . 
Willard  v.  Newburyport,  12  Pick.  227,     . 
Williams  v.  Salisbury,  9  Times  Rep.  787, 
Wood  y.  Gushing,  6  Met.  455, 
Wobum  y.  Co.  Commissioners,  7  Gray,  106 
Woodbury  y.  Hamilton,  6  Pick.  101, 
Wiswell  y.  Green,  Superior  Ct.  Cincinnati, 


34, 


129 


63, 


131 

,  130 

164 
.     197 

176 
.       42 

163 
.     138 

162 
.     172 

197 
.  167 
62,  68 
.     110 

130 
99,  213 
.       89 

176 
.     164 

139 
.  81 
32,  145 
.     153 

139 
.     175 


310  LIST  OF   CASES   CITED. 


York  V.  Johnston,  1   W.  &  S.  9, 127 

V.  Pease,  2  Gray,  282, 71 


» 


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